Sexual harassment in the workplace can make it impossible for a victim to perform the duties of his or her job. This includes unwelcome sexual advances or conduct based on the gender of the victim that creates an offensive, hostile, or intimidating work environment. While most people recognize that workers can be sexually harassed by managers, coworkers, or subordinates, they might not realize that workers can also be harassed by third parties who are not employed by their companies. In some cases, third-party sexual harassment can result in employer liability. If you are the victim of ongoing sexual harassment by a third party at your job, you might want to talk to the employment law and discrimination attorneys at Swartz Swidler.
What is third-party sexual harassment?
Third-party sexual harassment occurs when a non-employee harasses a worker. Typically, this type of sexual harassment is perpetrated by customers, vendors, or clients who come to the worksite and interact with employees. They might also be contractors or employees of different companies or independent contractors who are performing work for the company.
To form the basis of a sexual harassment claim, third-party sexual harassment must be pervasive and severe enough to create a hostile work environment. Single instances will not be likely to be enough to constitute unlawful behavior. For example, if a vendor asks a receptionist for a date, that would not qualify as sexual harassment. However, if the vendor repeatedly asks the receptionist out and makes suggestive comments every time that he or she enters the workplace, that might qualify as illegal third-party sexual harassment.
Third parties that might commit sexual harassment
Third parties who might engage in sexually harassing conduct can include any non-employee of a company, including the following people:
- Independent contractors
- Delivery drivers
- Employees of different companies who perform work at the company
The employer’s obligation
If an employer fails to take corrective action to try to prevent sexual harassment, it may be liable even though the harasser is a third party. Employees can file sexual harassment complaints about the third party with their employers. The employers must then investigate what happened. If an employer fails to investigate the complaint or to take corrective action, the employer may be liable for third-party sexual harassment in the workplace.
Following the investigation, an employer must take action that is designed to keep future harassment from occurring. This can include separating the employee from the harasser or keeping the harasser from returning to the business. Employers should make sure that they have policies in place that denounce third-party sexual harassment. If a complaint is filed by an employee, the employer should talk about the matter with the harasser and tell him or her to stop that type of conduct immediately. The employer might refuse to allow the harasser from coming back to the business and might consider reporting the conduct to the harasser’s employer. The employee should be given an option to work where he or she will not have contact with the harasser. Finally, the employee might think about whether an order of protection might be necessary. If an employer decides to separate the employee, the employee may still have grounds to file a retaliation claim if the move places him or her at a disadvantage.
Liability of employers for third-party sexual harassment
Employers may be liable for third-party sexual harassment if they knew about the problem or should have known about it and did not take appropriate corrective action. An employer might be liable if it fails to investigate what happened or fails to implement corrective action if it finds that the conduct occurred. If the harasser will not stop engaging in the harassing conduct, the employer might have to end its relationship with the harasser or the harasser’s company.
Retaliation after third-party harassment complaints
Some employers retaliate against employees for reporting sexual harassment by third parties. This might happen when a client harasses an employee when the client represents a large account. If the employer reacts by removing the employee from the account or penalizing him or her in another way, the employer may be liable for retaliation. Retaliation claims can be filed when an employer retaliates against employees who complain about sexual harassment.
Get help from an experienced lawyer at Swartz Swidler
Workplace sexual harassment can be difficult to handle. When the harasser is a third party, the victim might not know what to do about the situation. Victims should report unlawful harassment to their companies by following their employers’ internal processes. If the employer fails to investigate the case or to remedy the situation, a victim might want to consult with an experienced employment law attorney at Swartz Swidler. Call us today at 856.685.7420 to schedule a free consultation.