In recent years, there has been increased awareness about sexual harassment, yet it remains a persistent issue in the workplace. As it is also often challenging to identify or prove, this article hopes to dispel some myths or misunderstandings. Sexual harassment is a form of sex discrimination prohibited under federal, state, and certain local laws. Usually, it involves unwelcome behavior of a sexual nature. To establish a sexual harassment claim, victims generally must provide evidence that they either endured unwanted sexual conduct in order to retain their job or that the discriminatory conduct created a “hostile work environment” due to its severity or pervasiveness. Often, the harasser is a co-worker or supervisor, but it can also be a third-party – someone without a direct relationship to the employer. In some instances, employers can be held accountable for third-party sexual harassment toward an employee.
What Is Third-Party Sexual Harassment?
Third-party sexual harassment refers to instances where an employee is harassed by a non-employee. This harasser could be an independent contractor, customer, client, vendor, delivery person, or any other person interacting with an employee in the same workplace or on a job site.
Examples of third-party sexual harassment include a customer making unwelcome physical contact with an employee or a contractor repeatedly making sexually offensive comments or requesting sexual favors.
How Can an Employee Establish Third-Party Sexual Harassment?
To prove third-party sexual harassment, the employee must be able to prove the elements of a sexual harassment claim. The employee will need to be able to demonstrate either “quid pro quo” sexual harassment or a “hostile work environment” harassment.
Quid pro quo harassment occurs when a supervisor or someone with authority over the employee demands sexual favors in exchange for continued employment or some employment benefit.
Hostile work environment harassment is more common in cases of third-party sexual harassment. It takes place when an employee is subjected to unwelcome sexually offensive behavior that unreasonably alters working conditions, interferes with the employee’s job performance, or creates an abusive, intimidating, hostile, or offensive work environment. The behavior must be either severe or pervasive; the conduct must be more than “petty slights or trivial inconveniences.” The harassing behavior is judged from the perspective of a reasonable person in the employee’s position, considering all of the surrounding circumstances.
In addition to the above elements, an employee must also show that the employer knew or should have known about the harassment. This can be accomplished through a complaint by the employee or witness, or where the employer had reason to independently know about the conduct.
Are Employers Liable for Sexual Harassment by Third-Parties?
Employers have a duty to protect employees from third-party sexual harassment, even though they do not have full control over non-employees. Under federal law, employers are responsible for third-party conduct if they were aware of or should have been aware of the conduct and failed to take appropriate actions to stop the harassment. Employers can also be held liable if they have not established a reasonable way for employees to report harassing behavior, such as a written complaint procedure or employee handbook.
However, when determining whether an employer can be liable for third-party sexual harassment, federal agencies consider “the extent of the employer’s control and any other legal responsibility they may have regarding the conduct of such non-employees.” Generally, this means that employers are more likely to be held liable if they have some degree of control over the third-party’s behavior.
In New York, employers are specifically held responsible for sexual harassment of their employees by third-parties and vice versa if the employer knew or should have known about the harassment.
What Steps Should an Employer Take Regarding Third-Party Sexual Harassment?
The best practice for employers is to be proactive and implement preventative measures. Such measures could include providing regular sexual harassment and third-party sexual harassment training to employees and supervisors. Employers should also clearly state and frequently update their policies in an employee handbook and establish a reporting procedure for such claims. Additionally, employers should educate employees about what constitutes sexual harassment, their rights to be free from harassment (whether from another employee or a third-party), and the procedures for reporting and investigating these claims.
If an employee reports third-party sexual harassment, employers must promptly and thoroughly investigate the complaint and take corrective action to stop the harassment if it has occurred. This may involve interim measures to ensure the employee’s safety during the investigation. Employers should collect evidence, interview witnesses, document their actions and timing, and preserve all evidence in case of litigation. If the investigation confirms harassment, employers must take appropriate steps to address and prevent future harassment.
Lastly, employers must be cautious not to retaliate against the employee who made the complaint, including reassigning them to a less favorable position.
Conclusion
Failing to address third-party sexual harassment can lead to significant liability for employers and further harm to employees. If you require assistance with a sexual harassment claim or investigation, we recommend reaching out to one of our experienced attorneys to protect your rights and address the claim properly.
