Sexual Harassment at Work by Non-Employees

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 What is Workplace Sexual Harassment by a Third Party?

Workplace sexual harassment is considered a form of gender discrimination. There are two types of workplace sexual harassment under applicable law. One is called hostile work environment harassment. In hostile workplace harassment, an employee is the recipient of unwelcome gender-based jokes, slurs, ridicule, epithets or name-calling.

Another kind of harassment is called quid pro quo sexual harassment, where job decisions depend on whether a subordinate provides sexual favors or complies with the sexual demands of an employee in a supervisory position. In both types of cases, the employer is liable for harassment committed by one of its supervisors. But then, an employer may be liable for harassment by supervisors, co-employees and even non-employees, such as clients or contractors, as well.

What is Quid Pro Quo Harassment?

Quid pro quo harassment is a form of sex discrimination that is prohibited under federal law. It is also prohibited by the laws of many states. Quid pro quo harassment takes place when job benefits, such as promotions, bonuses or other improvements in status, are made to depend on an employee’s submission to a supervisor’s demands for sexual favors.

When an employer or supervisor makes the benefits of employment, such as promotions and salary increases, subject to an employee’s providing sexual favors, this is quid pro quo harassment.

Quid pro quo harassment also takes place when the refusal of the demand for sexual favors causes an employee to lose an employment benefit, such a bonus. Or the refusal may lead to other negative, employment-related consequences, such as suspensions, demotions, or even termination.

Is an Employer Liable for Quid Pro Quo Harassment?

Employers whose managers, supervisors, and agents commit quid pro quo harassment are held liable for their harassment when it leads to a significant, detrimental job action, such as a demotion or pay cut. So, if the supervisor’s request for sexual favors is refused, but no detrimental job action is taken, the employer may escape liability. The employer may also escape liability by showing that it had a sexual harassment complaint procedure in place but the employee did not utilize it.

What Constitutes Hostile Work Environment Harassment?

Hostile work environment harassment is another type of prohibited sex discrimination. Hostile work environment harassment might consist of a range of acts that are sexual in nature. Such harassment is directed at a person because of their gender.

The conduct can be verbal in the form of sexually explicit remarks, innuendos, or lewd comments. The conduct could also be visual, in the form of office posters, photography, computer screensavers or unwelcome physical contact with an employee by the harasser.

To qualify as hostile work environment harassment, the harassment must be severe or pervasive. “Severe or pervasive” means conduct that, taken as a whole, changes the terms and conditions of employment; it is serious enough that it turns the workplace environment into one that is hostile or abusive for the employees who are victimized. It has to be differentiated from conduct that is occasional and not repeated.

Employers whose managers, supervisors, and agents commit hostile work environment harassment are liable for this harassment if the harassment is accompanied by an adverse job action, such as a firing or a pay decrease.

When harassment does not lead directly to an adverse job action, an employer may prove they are not liable. They can do this by producing evidence to establish an affirmative defense that has two necessary elements as follows:

  • The employer reasonably tried to prevent and promptly correct any harassing behavior,
  • The employee did not act reasonably by taking advantage of preventive or corrective opportunities that were provided by the employer or otherwise assist in avoiding harm.

Can Employers Be Liable for Harassment by Third Parties?

Under certain circumstances an employer can be held liable for harassment committed by a person who is not an employee of the employer’s enterprise, such as customers, guests or contractors. A non-employee can commit sexual harassment by subjecting the employee of an enterprise to the same unwanted conduct that constitutes hostile work environment or quid pro quo harassment if it is done by an employee.

For an employer to be held liable for the harassment of a person who is not an employee, the victim must show that the employer, its managers or supervisors knew or should have known about the harassment. In addition, when made aware of the harassment, the employer must have failed to take immediate corrective action.

An employer can be held liable, for example, if a manager fails to investigate an employee’s complaints of harassment by the person who is not an employee. An employer can also be held liable if the employer fails to inform the employer of the non-employee of the harassment. So, in other words, if an employer is informed that a non-employee, someone employed by a different company, is harassing one of the employer’s workers, the employer should contact someone in the other company to discuss the harassment.

To demonstrate sexual harassment by a non-employee third party, a victim must show the following:

  • That the employer knew or should have known of the harassment;
  • The employee give the employer adequate notice of the fact that the conduct was unwelcome;
  • The employer failed to take appropriate action. There is no clear cut guideline as to what appropriate action might be. It might be informing the employer of the harassing non-employee about the harassment. Or, it might include ensuring that the harassing non-employee is not allowed to work near or around the harassed employee. Or, it could include instructing the harassing employee to stop the harassment. All of these steps would seem sensible.

Clearly if a person thinks they are the victim of harassment, they should inform their employer and document the fact that they did this, and when and how it was communicated to their employer.

An employer who is informed by an employee that they have been harassed by someone who is not an employee but who has access to the employee would want to respond and document appropriate actions. These would include contacting the employer of the harasser, arranging for the harasser not to have contact with the victim and directly addressing the harasser and telling them to stop the harassment. Of course, all steps taken should be documented.

Do I Need the Help of a Lawyer for a Sexual Harassment Claim?

If you believe you have been the victim of sexual harassment, you should consult with an experienced sexual harassment lawyer. An experienced harassment attorney near you can review the facts of your case. The lawyer can advise you of your rights and your options, and represent you in negotiations with your employer or in a lawsuit if that should become necessary.

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