The EEOC has filed a federal class action lawsuit against Kraft Foods
on the basis of same-sex harassment in the workplace. The suit was
filed on behalf of male employees who said that their civil rights
were violated when they were subjected to a sexually hostile environment
and retaliation by a male supervisor at a sales and distribution center
in Birmingham, Alabama.
Associated Press, October 25, 2002
liable if customers or members of the public mistreat or harass their
employees? Maybe yes, maybe no, according to recent court cases.
courts have upheld employer liability for third party (non-employee)
harassment if the employer knew or should have known that the harassment
was taking place, and did nothing to stop it, and if the employee
through his or her job responsibilities is forced to interact with
the harasser. However, these standards have evolved exclusively through
the courts: Title VII does not specifically address standards of employer
liability for third party harassment. The U.S. Supreme Court has established
basic rules of liability for harassment by supervisors and co-workers,
but has never addressed the issue of third party harassment.
a supervisor is the harasser, employers are automatically liable,
unless they can mount a two-prong affirmative defense (see Archives
August-September 1999). If a peer is the harasser, the
standard reverts back to the "knew or should have known"
standard for employer liability. Some federal courts have applied
this latter standard to third party harassment as well.
all courts agree. According to a recent California appellate court
decision, employers are not liable for third party harassment even
if they knew about it and did nothing.
in point involved a bus driver, Raquel Salazar, who drove a route
that served mentally handicapped adults. Ms. Salazar experienced severe
and persistent harassment at work from some of her customers: physical
contact, genital exposure and sexual assault. Ms. Salazar reported
the harassment and requested assignment to a different route to avoid
the harassment. Previous drivers on the same route had reported similar
problems. Ms. Salazar's request for a transfer was denied, and when
she quit and subsequently sued for violation of her rights under Title
VII, she lost.
this happen? Although the California decision may not be consistent
with other similar cases, it does underscore the fact that harassment
by customers or third parties is currently without clear legal standards.
guidelines state: "The employer may also be responsible for the
acts of non-employees, with respect to sexual harassment in the workplace,
where the employer knows or should have known of the conduct and fails
to take immediate and appropriate corrective action." Courts
have focused on the word may in this guideline, and
one factor that determines potential employer liability is the level
of control the employer actually has over the third party behavior.
According to this standard, an employer would therefore be more liable
for the behavior of a regular visitor to the fire station than it
would be for the comments of a bystander at an emergency scene.
the law is not completely clear about liability for third party harassment,
the moral and practical imperative to stop such inappropriate behavior
is clear. Supervisors undermine their own credibility when they allow
employees to be mistreated by the public, and they also send the message
that such behavior may be tolerated in the workplace. Harassment by
third parties may or may not be illegal depending on the applicable
standards, but it is still wrong, and should be stopped.
Salazar v. Diversified Paratransit Inc.
Should Employers Be Held Responsible for Sexual Harassment of Employees
by Customers if they were Aware of it? by Joanna Grossman on www.findlaw.com