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Offensive Conduct by Retailer’s Repeat Customer May Support Claim for Sexual Harassment

Aretail customer’s offensive acts directed toward a number of female employees may support a claim of sexual harassment by the employees against the retailer, a federal court has ruled. EEOC v. Fred Meyer Stores, Inc., No. 3:11-cv-00832 (D. Or. June 17, 2013).

The Equal Employment Opportunity Commission alleged that a Fred Meyer store located in Oak Grove, Oregon, allegedly tolerated offensive conduct by a repeat customer, thereby subject- ing female employees to a sexually hostile work environment because of their sex. The employees claimed they were sexually harassed by the cus- tomer on multiple occasions and the store failed to adequately address the problem, despite its knowledge of the alleged conduct. The employer moved for summary judgment, contending the alleged conduct was not sufficiently severe or pervasive to be actionable harassment. The court denied the motion.

The court held the alleged conduct was sufficient to support a finding of harassment for three rea- sons. First, it found that many of the employees complained to the store’s management about the alleged conduct, indicating they found the con- duct subjectively offensive. Second, much of the alleged conduct was very offensive, including alleged touching of employees’ breasts, the court said. Third, the employees testified they were aware of offensive conduct directed to each other, which, the court said, contributed to an atmosphere of fear.

The case highlights how important it is for managers and employers to take employee complaints regarding inappropriate customer behavior seriously, particularly where the customer’s problematic behavior constitutes a pattern of conduct. Companies must take action to protect employees from these customers, including taking steps such as banning the customer from the store. Without taking such decisive steps, inappropriate customer behavior may support a claim of sexual harassment by the employees against the retailer.

Jackson Lewis P.C. © 2019

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About this Author

Mark Askanas, Jackson Lewis, arbitration forum attorney, employment dispute lawyer, preventive employer group legal counsel
Principal

Mark S. Askanas is a Principal in the San Francisco, California, office of Jackson Lewis P.C. He joined the firm in 1988 and is a senior employment law litigator who has served as lead counsel for cases in state and federal courts, as well as arbitration forums, throughout the western United States.

Mr. Askanas specializes in complex litigation, including class actions and cases involving trade secrets and confidential information. He also counsels employers on all facets of employment law including, but not limited to,...

415-394-9400
Dylan B. Carp, Jackson Lewis, unfair competition lawyer, trade secrets law attorney
Principal

Dylan B. Carp is a Principal in the San Francisco, California, office of Jackson Lewis P.C. He is a Certified Specialist in Appellate Law by The State Bar of California Board of Legal Specialization.

Mr. Carp has argued 10 appeals before federal and state courts. In addition to appeals and writs, Mr. Carp focuses his practice on unfair competition and trade secrets law, having second chaired a three-month unfair competition jury trial.

Mr. Carp also handles all aspects of litigation in cases involving discrimination, harassment, disability, and wage and hour issues, including taking and defending depositions, briefing and arguing dispositive motions, and participating in mediations and settlement conferences. In addition to Mr. Carp’s litigation practice, he counsels employers on unfair competition, discrimination, harassment, and wage and hour issues.

415-796-5425