Third-Party Sexual Harassment

An employer can be liable for sexual harassment committed by clients, customers, and others who are not company employees.

Sexual harassment is unwelcome conduct, based on the victim’s gender, that creates an intimidating, hostile, or offensive work environment. An employee can be sexually harassed by coworkers, a manager, or even a subordinate, depending on the circumstances. Sometimes, harassment is committed by people who aren’t company employees, such as clients, customers, vendors, or independent contractors. Whether harassment is committed by employees or outsiders, the employer’s responsibility is the same: It must take reasonable steps to put a stop to the harassing behavior, or face legal liability.

Third-party sexual harassment happens when the harassment is committed not by another employee, but by an outsider. Typical perpetrators of this type of harassment include clients, customers, vendors who come on site or otherwise interact with employees, independent contractors who work for the company, and employees or contractors of a different company (for example, a security guard who is responsible for an office building where the company does business, maintenance and repair personnel who regularly come on company property, or caterers who work company events).

Third-party sexual harassment must meet theregular definition for sexual harassment — that is, it must be so severe or pervasive that it creates a hostile or abusive work environment. For example, if a delivery driver asks the company receptionist to go on a date, that wouldn’t be sexual harassment. If the same driver asked the receptionist out repeatedly, refused to take no for an answer, and commented on her appearance every time he made a delivery, that would likely cross the line. Similarly, if a client touched an employee on the arm while having a business lunch, that wouldn’t constitute harassment. But if the client repeatedly touched the employee inappropriately, despite her requests that he stop, that would be harassment.

An employer will be legally responsible for sexual harassment of its employees by a third party if it knows or should have known about the problem and failed to take immediate and appropriate corrective action. For example, if an employee complains that a client is harassing her, the company should immediately investigate the situation. If it finds that inappropriate conduct took place, the company must act. For example, the company could place another employee on that account and inform the client that his behavior must stop. Of course, the company doesn’t have the same control over third parties as it has over its own employees. If the client or other third party won’t change his behavior, this might leave the company with no alternative but to end the relationship with the outsider.

Employers must be careful not to penalize the employee who has been harassed. For example, if a client is sexually harassing an employee, but that client represents the company’s biggest account and a plum assignment, the employee may not want to be removed from the account. Similarly, if an employee’s job is to oversee all vendor relationships, and the company demoted her so she wouldn’t have to work with a vendor who was sexually harassing her, that’s a negative action for the employee. This types of actions — that penalize the employee who complains — are illegal retaliation. The employee can’t be punished for coming forward to complain of harassment.

Whether you’re an employer or an employee, third-party harassment claims can be tricky. Employers must be careful to protect their employees and avoid retaliation — while trying to maintain important work relationships with outsiders. Employees need to know how to assert their rights, including their right to work free from retaliation for reporting harassment. If you find yourself facing a third-party harassment situation, you should consider a consultation with an experienced employment lawyer.