In such situations, does an employee have a case against his or her employer? Federal law does protect workers from harassment in the workplace and particularly prohibits hostile work environments, but does that protection extend to situations where employees are not threatened by co-workers, supervisors or managers, but by clients and customers?
The answer to this question is, yes. Federal laws like Title VII of the Civil Rights Act do extend protection of workers from harassment to situations where the harassment comes from clients or customers under certain circumstances.
Title VII and Non-Employee Harassment
According to Title VII, employers can be held liable for discrimination when an employee shows that he was discriminated against because of belonging to a certain protected group based on race, color, national origin, religion, age, sex or disability. The law applies to companies with 15 or more employees and covers all areas of the employment process including hiring and firing.
The law also prohibits workplace harassment based on membership in any of the protected categories, as well as harassment which results in a hostile work environment.
Generally, Title VII applies to harassment from co-workers or supervisors. However, in 1998, a Supreme court case called Burlington Industries, Inc. v. Ellerth, 524 US 743 (1998), established that an employer could be held liable for harassment by a co-worker or non-employee that it knew about or should have known about, but failed to take measures to correct.
Since this case, no other Supreme Court cases have directly addressed the subject of non-employee harassment. However, the EEOC has issued guidance related to the subject in the context of sexual harassment. Lower courts have also consistently treated co-worker and non-employee harassment the same in that establishing liability requires showing supervisory negligence for both.
Proving Non-Employee Harassment
In other words, in order to have a case against an employer when harassment comes from non-employees, an employee must first prove that his or her employer knew or should have known about the harassment.
Second, the employee must prove that despite knowledge of the harassment, the employer did not take corrective action. Additionally, courts as well as the EEOC take into consideration the amount of control the employer has over the situation in light of the circumstances and may particularly analyze the amount of control and legal responsibility an employer has over the conduct of non-employees.
Additionally, an employer has an affirmative defense in non-employee harassment cases. If the company can prove that sufficient corrective measures were offered and that the employee failed to or was negligent in taking advantage of the corrective measures, the company may be able to avoid liability.
Examples Involving Non-Employee Harassment
Courts have shown a consistent method of applying the standard for non-employee harassment. for example when an employer is able to show sufficiency methods for correcting the harassment, court are less likely to rule in favor a complaining employee.
However, when it is apparent that an employer has tolerated, ignored or encouraged reports of harassment, an employee is more likely to be successful with his or her case. For example, in Lockhard v. Pizza Hut, Inc., 162 F.3d 1062, the employee made repeated attempts to draw her employer’s attention to increasingly egregious forms of abuse and harassment from customers at a pizza restaurant. In finding that the restaurant took no action to protect the waitress despite her reports, the court ruled in favor of the employee.
The rule against harassment from non-employees also applies to independent contractors. Again, courts and the EEOC will evaluate the amount of control and legal responsibility an employer has over an independant contractor in order to assess whether the employer has incurred liability. Of course, when the non-employee or independent contractor carries out the harassment outside of the workplace, courts are less likely to rule a violation of the law has occurred.
What should I do when a non-employee harasses me?
An employee dealing with situations of workplace harassment has a number of options. First, it is important for employees to report incidents to his or her supervisor, manager or HR office. Consult the employee handbook or other company policy manuals to understand fully the correct procedure for filing a complaint within your company as soon as possible. Doing so gives employees a chance to ask questions and identify proper contacts before an incident occurs.
Employees also have the option of filing a formal complaint with the EEOC. The EEOC handles Title VII harassment charges as well as harassment charges that are filed under the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).
The charge handling process must be initiated no later than 180 days after the last occurrence of harassment by a non-employee. Once an EEOC charge is filed, an investigator will review the case and gather facts by contacting key players, including supervisors and managers. At the conclusion of the investigation, the agency may issue a notice of Right To Sue signaling that an employee can go forward with his or her case in a court of law.
If You Think You’ve Been Harassed by a Client/Customer…
If you think you’ve been harassed by a client or customer, time is of the essence. Contact a qualified and experienced attorney with the necessary skills to handle complex employment discrimination cases as soon as possible.