May 23, 2022

Volume XII, Number 143

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May 20, 2022

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Sexual Harassment Claims May Arise from the Conduct of Non-Employees

Employers generally are familiar with laws that prohibit sexual harassment in the workplace. Most employers establish and enforce policies prohibiting sexual harassment by co-workers and supervisors, investigate claims of harassment by employees, and impose disciplinary action on employees if they violate the employer’s sexual harassment policy. The enforcement of such policies helps employers avoid liability for sexual harassment claims based on employee misconduct, but employers should also be mindful of the conduct of third parties in the workplace. Failing to respond to sexual harassment complaints about the behavior of third parties could result in exposure to sexual harassment claims just as surely as unanswered complaints about employee misconduct, as demonstrated by a lawsuit recently filed by the Equal Employment Opportunity Commission against a home health care business.

In EEOC v. Beacon Hill Investments Corp., the Commission brought suit on behalf of a class of female home health care workers who were assigned to work in the home of one of the employer’s male patients. The male patient allegedly made inappropriate sexual contact with the female employees, made suggestive comments to them on a daily basis, and accosted them while they slept in his home. The female employees allege they complained to their employer but no action was taken in response to their complaints. Ultimately, the employees felt they had no recourse but to resign due to the treatment they received at the hands of the male patient. The Commission’s lawsuit followed.

Courts in various federal circuits have recognized sexual harassment claims by employees based on third party misconduct, similar to that alleged in the EEOC’s complaint. Those courts have held that an employer may be held liable for a hostile work environment if it fails to take appropriate remedial action reasonably calculated to address the third party misconduct. Although an employer does not have the authority over third parties that it has over employees, and, thus, its options are more limited in addressing claims of third party harassment, employers should ensure their sexual harassment policies cover harassment by third parties, and provide a reporting procedure for complaints of third party harassment. Employers should investigate complaints to the extent possible and then determine if any reasonable corrective action is necessary and available depending on the facts of each situation. When in doubt, employers should not hesitate to contact legal counsel for advice on how to respond to a complaint of third party harassment.

© 2022 Poyner Spruill LLP. All rights reserved.National Law Review, Volume , Number 280
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About this Author

David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm
Partner

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans...

919-783-2854
Susanna Knutson Gibbons, Poyner Spruill Law firm, Employment Compliance Attorney
Partner

Susie practices in the areas of employment compliance law, employment defense in litigation and administrative proceedings, and ERISA litigation. She regularly advises and defends clients in the full range of employment related issues, including discrimination, retaliation and harassment, wrongful discharge, Affirmative Action Plans, Fair Labor Standards Act , and Family Medical Leave Act. She also reviews and writes employment contracts, policies and handbooks. Susie is a regular speaker on employment matters. Susie is also both the Employment Law Practice Group Leader and a member of the...

919-783-2813
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