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Court Confirms Employer Can Be Liable For Harassment By Non-Employee

Faced with a question not yet addressed by the Third Circuit, a federal judge in Pennsylvania found an employer, as well as individual managers, may be held liable for an employee’s claim of a hostile work environment based on conduct by a non-employee who had regular contact with the employee. Hewitt v. BS Transp. of Ill., LLC, et al., No. 18-712, 2019 (E.D. Pa. Jan. 10, 2019).

Carl Hewitt worked as a freight driver for BS Transportation hauling NASCAR fuel in conjunction with a contract between BS Transportation and a third-party. Hewitt alleged that in early-2014, an employee of a company that BS Transportation did business with began to make sexual advances toward Hewitt when he traveled to the third-party’s plant to pick up fuel. He alleged that the advances were consistent, about once or twice a week, and other third-party employees and supervisors knew of the behavior. Hewitt alleged that, in early-August 2016, the third-party’s employee inappropriately grabbed him and pushed him into a trailer, asking Hewitt: “do you like that?” Hewitt claimed he reported to the third-party employee’s manager that he had been sexually harassed and now assaulted by the employee. The manager said he would take care of it. Later that day, Hewitt’s supervisor informed Hewitt that he spoke with the third-party employee’s manager and that the situation would be handled, and asked Hewitt not to say any more about it. The alleged harassment ceased until late-September, when inappropriate sexual comments and gestures restarted, which Hewitt reported to his manager. The lawsuit alleged that Hewitt’s manager did not address Hewitt’s complaint with the third-party’s management and, as consequence, Hewitt was constructively discharged.

Hewitt asserted various causes of action, including: (1) sex discrimination and retaliation under Title VII; (2) discrimination on the basis of race, color, and national origin under Title VII; (3) sex discrimination under the Pennsylvania Human Relations Act (PHRA); (4) retaliation under the PHRA; and (5) aiding and abetting under the PHRA. The defendants included BS Transportation, the third-party vendor, an employee/supervisor of the third-party, and the BS Transportation owner – all of whom filed motions to dismiss.

The court dismissed all claims except the claims of (1) hostile work environment against BS Transportation under Title VII and the PHRA; and (2) aiding and abetting against the owner of BS Transportation.

With regard to the hostile work environment claims, the court found that an employer may be held liable “where the employer (or its agents or supervisory employees) know or should have known of the conduct and fails to take immediate and appropriate corrective action.” Hewitt’s allegations that his manager failed to investigate his complaint of sexual harassment by the third-party employee or notify third-party management of his continued complaints, at this stage of the litigation, was sufficient to withstand a motion to dismiss.

Similarly, with regard to the aiding and abetting claim, the court found that the BS Transportation manager’s failure to notify the third-party’s management of Hewitt’s continued complaints allowed the court to make a reasonable inference that the manager failed to take prompt remedial action against the discrimination.

Lesson for employers: Even if the harassment is coming from a non-employee of the company, complaints of a hostile work environment (or any type of discrimination) must be addressed immediately and, if warranted, appropriate corrective action taken. Where an employer knows or should have known about the existence of a hostile work environment and fails to address it, both the company and individual managers may be liable.

Second Author: Carlyle W. Edwards-Balfour

Jackson Lewis P.C. © 2019

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About this Author

Principal

Brett M. Anders is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He exclusively represents management in workplace law, including counseling and litigation.

Mr. Anders routinely advises clients regarding day-to-day employment issues, such as employee discipline and discharge, disability management issues, reductions-in-force and restrictive covenants. He also regularly conducts training programs for employers on a variety of employment-related topics, such as performance management, sexual harassment awareness and...

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