How to Address Third Party Harassment
Author: Beth P. Zoller, XpertHR Legal Editor
It is an employer's responsibility to maintain a workplace free from harassment. An employer must strive to protect employees from harassment by others as well as avoid having employees and supervisors harass third parties. Because an employer may be liable for any harassing conduct it knew or should have known about and failed to address, an employer should be concerned not only with harassment by and between employees, co-workers and supervisors, but also third parties and non-employees , e.g. independent contractors, vendors, suppliers, customers. An employer must implement the proper policies and procedures to minimize the potential for liability and harassment lawsuits as well as protect its legitimate business interests. In order to address third party harassment, an employer should take the steps below.
Step 1: Understand the Extent of Employer Liability for Harassment
Employer Liability to Employees and Supervisors for Acts of Third Parties. Under Title VII of the Civil Rights Act and the laws of several states, an employer may be liable to an employee for the harassing acts of independent contractors and third parties if the employer knew or had reason to know of the harassment and failed to take prompt remedial actions reasonably calculated to end it. An employer will generally be liable for any conduct occurring on its premises or under its control. This scenario often arises in the context of the health care industry with doctors, patients and nurses as well as in the hospitality industry with patrons at bars, restaurants and hotels. Whether an employer's response was reasonable will depend upon the nature of the harassment, the context in which it took place and the practical limits of the employer's ability to respond to the harassing conduct.
Therefore, it is critical for employers to take actions to address any claims by employees and supervisors as well as third parties and independent contractors and reduce the risk of a lawsuit and employer liability. An employer cannot rely on the fact that the conduct concerned a non-employee, but should work to maintain a workplace free of harassment by anyone. Once an employer is aware of harassing conduct, no matter the source, it should take all reasonable steps to address it.
Employer Liability to Third Parties for the Acts of Employees and Supervisors. An employer should understand that third parties such as independent contractors, temporary, part time and seasonal workers as well as customers, clients, suppliers and vendors may have a harassment claim against an employer based on the harassing acts of its employees and supervisors. Although the protections of Title VII of the Civil Rights Act and similar federal equal opportunity laws prohibiting harassment extend only to employees, and not independent contractors, consultants or freelancers, an individual may be able to prove that he or she is actually legally defined employee based on hours, duties and responsibilities. Further, independent contractors may be may be able to recover based on Section 1981 of the Civil Rights Act which protects the right to enter into a contract, including an independent contractor's right to work for an organization. In addition, there are some state laws that extend discrimination and harassment protections to independent contractors and third parties. Further, some state courts have determined that equal opportunity laws cover independent contractors.
Step 2: Develop and Implement Harassment Policies and Procedures
It is critical for an employer to develop, implement and enforce strong policies and procedures prohibiting harassment in the workplace. A harassment policy should advise individuals that harassment is any conduct that is (1) unwelcome, (2) based on an individual's membership in a protected class, and (3) sufficiently severe or pervasive enough to alter the terms and conditions of employment and create a hostile work environment. Additionally, the policy should specify that harassment includes not only physical and verbal acts, but may also include emails, jokes and other inappropriate conduct.
Harassment is not always clear cut and may be subjective. Further, harassment is not only sexual, but may be based on an individual's membership in any protected class, e.g., race, religion, age, sexual orientation. The policy should also lay out a multi-channel reporting structure that allows an individual to bring a harassment complaint to members of management and advises the individual that he or she will not face any retaliation for complaining about harassment.
The policy should be conveyed not only to employees and new hires, but also to third parties. An employer should post conspicuous signs in public and common areas stating that it is an equal opportunity employer and it strictly forbids harassing conduct. An employer should also place a copy of the harassment policy in an employee handbook or on the employer's intranet. In addition, an employer should consider posting a statement that it prohibits harassment on the employer's letterhead, business cards or billing statements. Further, an employer also may which to include an indemnity provision in a contract shifting liability to the vendor, supplier or customer.
Additionally, it is important for an employer to obtain an employee's acknowledgement that he or she has received and read the harassment policy and that he or she agrees to abide by it. Further, an employer should advise individuals of the procedures for handling the complaints of employees and non-employees. An employer needs to make sure that the policy is followed and enforced uniformly and consistently whenever it learns of an incident of harassment.
Step 3: Provide Harassment Training
An employer should make sure to provide harassment training to employees and supervisors as well as independent contractors, temporary, part-time and seasonal workers. Although harassment training is only required by three states and not required under federal law, it is an effective prevention technique and may greatly aid an employer with a defense in a future lawsuit. An employer should also consider conducting antiharassment training for clients or vendors who come into frequent contact with an employer's employees because an employer may be liable for harassment by any third parties on its premises or under its control if the employer knew or should have known about the conduct and failed to take immediate corrective action.
The training should instruct individuals on how to identify and report instances of harassment, no matter the source, and lodge a complaint. The training should detail what constitutes appropriate versus inappropriate behaviors. It is important that the training be frequently reviewed and updated based on changes in the law and the employer's workforce.
Step 4: Investigate Harassment Complaints
An employer should make sure to investigate all complaints in a prompt and thorough manner no matter who reports the harassment and who the alleged harasser is. An employer should also document each step of the investigation. First, an employer should initiate the investigation by gathering all relevant documents including emails and text messages as well as interviewing the victim, the alleged harasser and any witnesses to the alleged harassment. In those cases where an employee or supervisor may need to be a witness in a later lawsuit, an employer may seek to have a neutral third party conduct the investigation.
The investigator should make sure that it does not jump to conclusions and should be sure to weigh all of the facts carefully. An employer may want to consider implementing interim measures such as separating the victim and the alleged harasser during the duration of the investigation. Further, an employer should make every effort to keep complaints and details of the investigation confidential and protect employees who complain of harassment from retaliation for making such a complaint. An employer should maintain copious notes and carefully document each action taken and its reasons for choosing a specific course of action. Additionally, an employer should take all harassment claims extremely seriously and investigate each one no matter who files them because doing so will only aid in reducing the chance of employer liability.
Step 5: Take Remedial Measures and Impose Discipline
In the event that the employer determines that harassment has occurred upon the completion of the investigation, the employer should take the appropriate remedial measures. If the harasser is an employee or supervisor, the employer should make sure to impose the proper disciplinary measures which may include a warning, suspension or even termination. When it comes to third parties such as independent contractors, customers or vendors who may be outside the employer's control, the employer should consider taking other actions such as banning the customer from a store, refusing to work with a supplier's employee, replacing a contractor, requesting that a certain salesperson be removed from an account or sending a warning letter to the vendor's company. Further, an employer may prohibit an independent contractor or third party who harassed its employee from entering the workplace and interacting with the staff. An employer should make sure to convey to the complainant exactly what steps have been taken to remedy the harassment and instruct him or her to report any further harassing instances.
In taking a remedial measure, an employer should be particularly careful that it does not retaliate against or take adverse action against the employee who complained of harassment. Even if an employer does not realize it, removing an employee from a project or transferring the employee to a different department could be considered a form of retaliation. The key focus will be on whether the employer knew or should have known about the harassment and the steps it took to remedy it.