HR Compliance

Protecting Off-Site Workers From Sexual Harassment

By

Kristin Birchell

| Jul 3, 2018

Title VII of the Civil Rights Act and other employment laws mandate that employers create and maintain harassment-free workplaces. This requirement extends beyond the physical workplace and can include employer obligations when employees are dealing with third parties such as customers, clients or vendors.

Although employers generally cannot control the actions of non-employees, they still may be liable for the conduct of these individuals toward the employer’s off-site employees. Understandably, that’s concerning to many employers, but that doesn’t leave you powerless. Here’s what you need to know to help protect your off-site workers.

What is the employer’s liability?

Regarding sexual harassment, employers can be held liable for the acts of nonemployees if the employer knew or should have known about the inappropriate conduct and failed to take immediate and appropriate corrective action.

This could apply in a broad range of cases, including employees working off-site with a client’s employees or dealing off-site with vendors that provide goods or services to your organization.

The same logic that applies to co-worker sexual harassment also applies to sexual harassment by nonemployees. The employer’s failure to act in these circumstances requires its employees to work in an abusive working environment.

Several courts have held that employers are responsible for taking measures to control or minimize harassment of their employees by third parties. Employers could pay damages for failing to take appropriate measures to protect their employees; the cost of damages may include:

  • front pay – this is meant to make the victim “whole” by placing the individual as near as possible to the situation he or she would have been if the harassment had not occurred. For example, if the employer responds to harassment claims by transferring the employee to a job position which required a demotion, that employee may be entitled to front pay if he or she cannot be reinstated to a comparable position.
  • back pay – this is meant to restore the employee’s income he or she would have otherwise earned but for the harassment. Following the example from above, if the employee is reinstated to a comparable position, the employee may be entitled to back pay for the time that he or she was required to work in a demoted job position.
  • out-of-pocket losses (such as job search expenses)
  • pain and suffering
  • loss of enjoyment of life
  • punitive damages

All of that could add up to a hefty sum.

 

What should employees do if they are experiencing sexual harassment off-site?

Report the inappropriate behavior! The first step should be to report sexual harassment to their employer so they can take appropriate action with the third party. Employers cannot take action if they are unaware the employee is being sexually harassed.

Employers must have a policy indicating how employees should make a complaint in these situations.

If the employer does not respond to the claims, the employee may be able to file a complaint with the Equal Employment Opportunity Commission (EEOC), which will then investigate the claims.

What should you do if you become aware that your employees are being harassed off-site?

Employers have a duty to provide a work environment for their employees that is free of harassment and where such conduct is discouraged by both employees and non-employees. This includes off-site interactions.

When an employee has alleged harassment claims by a third party, the employer should take prompt, appropriate action to investigate, prevent and correct the harassment. The employer should do the following:

  • Investigate the allegations, including interviewing any witnesses in a timely and fair manner and documenting any findings.
  • Take reasonable steps to eliminate the harassment. This should be determined on a case-by-case basis. Employers should respond to the situation in a manner that is appropriate in light of all the circumstances.

Examples of steps an employer may take to eliminate harassment might include:

  • warning the client, customer, vendor or other individual, or their appropriate authority, of the misconduct
  • communicating the consequences of repeated misconduct, such as separation of services
  • reassigning the employee to avoid further interactions, only if the employee is agreeable to the change

Any steps taken to respond to the situation should not punish or otherwise create adversity for the employee.

The employer’s responsibility

Employers have a legal obligation to make sure that their employees are not subjected to work environment that includes unlawful harassment, even if that harassment comes from a third party.

Employers should include information about harassment by nonemployees in their handbooks and training so that employees know what to do if this conduct occurs. Sexual harassment trainings should include how to report any harassment, whether this comes from a coworker or a person outside your organization. Employers must take prompt action when claims are made to both remedy the situation and also to avoid any potential liability.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Kristin Birchell

As a compliance attorney for Paycom, Kristin Birchell monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Birchell earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her husband.

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