Can Employers Be Held Liable for Harassment by Non-Employees?

 Picture this scenario: your employee, a delivery driver, makes regular stops at a production facility.  The facility is not owned by your company, and your company does not employ any of the production facility workers.  While at the facility, your driver is subjected to unwanted comments and touching by an employee of the facility.  Your employee complains, and your HR Manager states they’ll work with management at the production facility to handle it.  Your employee later returns to the facility, and the harassment continues.  Your employee resigns as a result of the ongoing harassment. 

Your employee then files suit against your company, claiming the company was aware of the harassment but did not take sufficient steps to investigate or work with the production facility to stop the behavior.  Your company counters by arguing it shouldn’t be liable, as the offending employee works for the production facility, not your company. 

How do you think the court ruled in this situation?

These facts are based on an actual lawsuit in Pennsylvania.  In that case, the court found that an employee’s claims of hostile work environment and aiding and abetting could move forward against the employer, as well as a management level employee of the employer.  The court determined that the employer and the manager knew of the harassment against the employee, but failed to take immediate and appropriate action to stop it.  In fact, the employee claimed the employer did not investigate his claims and did not have any follow up with management at the production facility to stop the behavior.  As a result, the employee’s claims will proceed through the courts. 

What can employers do to avoid a similar result?  Always promptly and thoroughly investigate any complaints of harassment made by an employee.  This is true even if the claimed harassment occurs by someone not employed by the company, such as a client, customer, vendor, or visitor.  After the investigation, prompt corrective action must be taken if warranted.  If an employer fails to act quickly, they could be liable.  In addition, any of the employer’s management staff involved in not remedying the situation could face personal liability.  Be sure to have procedures in place to start an investigation upon receiving a harassment complaint from an employee. 

 Written by Mikel Johnson

 

 

 

 

 

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