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January 17, 2022 | Employment LawFrom the blog

Third Party Sexual Harassment

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Are Employers Liable for Third-Party Sexual Harassment?

Sexual harassment has gotten significant attention in recent years.  Despite this, it can persist in workplaces because it can be difficult to recognize or prove.  Sexual harassment is a form of sex discrimination that is illegal under federal, state and some local laws.  Generally, it is defined as unwelcome conduct that is based on the employee’s sex.  Typically, victims must show evidence that they either had to endure discriminatory conduct to keep their job or that the conduct was severe or pervasive enough to create a hostile work environment.  Often, the harasser is a co-worker or manager.  However, the perpetrator can also be a third party.  In some cases, employers can be liable for a third-party’s sexual harassment of an employee.

What Is Third-Party Sexual Harassment?

Third-party sexual harassment is harassment of an employee by a non-employee.  The harasser may be an independent contractor, customer, client, vendor, delivery person or any other individual who interacts with an employee in the same building or on a worksite but is employed by a different company.

Examples of third-party sexual harassment may include a customer who makes unwelcome physical contact with an employee, or a contractor who makes repeated sexually offensive comments or requests for sexual favors.

How Can an Employee Establish Third-Party Sexual Harassment?

To prove harassment, a complainant must meet the elements of a sexual harassment claim.  The plaintiff must show either quid pro quo sexual harassment or hostile work environment harassment.

Quid pro quo harassment arises when a supervisor or other person with apparent authority over employment benefits demands sexual favors from an employee in return for continued employment or some employment benefit.

Hostile work environment harassment is more commonly seen in cases of third-party sexual harassment.  Hostile work environment harassment occurs when an employee is subject to unwelcome sexually-offensive conduct that unreasonably alters employment conditions, interferences with an individual’s performance or creates an abusive, intimidating, hostile or offensive work environment.  Such conduct must be severe or pervasive under federal law, or more than “petty slights or trivial inconveniences” under New York state law.  The conduct is judged from the perspective of a reasonable person in the employee’s position, considering all the circumstances.

In addition to demonstrating the above elements, an employee must show that the employer knew or should have known about the harassment.

Are Employers Responsible for Sexual Harassment by Third Parties?

Yes, employers have an obligation to protect employees from sexual harassment by third parties even though they do not have full control over the nonemployee.  Under federal law, employers are responsible for third-party conduct if they knew or should have known about the conduct and failed to take appropriate corrective action.  Employers can also be liable if they have failed to provide a reasonable avenue for complaint or report of the conduct.

However, federal agencies will consider “the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.”  Typically, this means that an employer is more likely to be liable if they have some degree of control over the third party’s conduct.

New York holds employers expressly responsible for sexual harassment of employees by third parties and vice versa if the employer knew or should have known of the harassment.

What Steps Should an Employer Take Regarding Third-Party Sexual Harassment?

Best practice is for employers to be proactive and take preventative measures such as providing regular sexual harassment training to employees and supervisors that address third-party sexual harassment.  Employers should state and regularly update their policies in an employee handbook and institute a procedure for reporting such a claim.  Employers should educate employees regarding conduct that constitutes sexual harassment, their rights to be free of sexual harassment—whether by another employee or a third party—and the employer’s reporting and investigation procedures.

If an employee does report third-party sexual harassment, employers must take reasonable steps to immediately and thoroughly investigate the complaint and stop the harassment if it has occurred.  This includes interim steps to protect the employee’s safety while the allegations are being investigated.

Employers should gather evidence, interview witnesses and document what steps they took and when.  All evidence should be preserved in the event of litigation.  If the investigation confirms harassment, employers must take appropriate action to correct and remedy the harassment and prevent future harassment.

Finally, employers must take extra care not to retaliate against the employee for making the complaint.  This includes reassigning them to a less favorable position.

Failing to address third-party sexual harassment can result in significant liability for employers and cause further harm to employees.  If you need assistance with a sexual harassment claim or investigation, contact one of our experienced attorneys about the best path to protecting your rights and properly addressing a claim.

Photo by Christian Erfurt  on Unsplash

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