Are Employers Liable For Harassment By Customers?

What laws protect me from a hostile work environment?

Best Employment Lawyer Answer: Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA”), Age Discrimination in Employment Act of 1967 (“ADEA”), and state law (such as Ohio’s Revised Code § 4112.01, et al.) protect employees from hostile work environments based on race/color, gender/sex (including pregnancy and LGBTQ+ status), religion, national origin, disability, and age.

What qualifies as a hostile work environment in the law?

Best Employment Attorney Answer: A hostile work environment is created when an employee is subject to unwelcome verbal or physical behavior that is either severe or pervasive based on that employee’s race, gender, sexual orientation, gender identity, religion, national origin, age or disability. In  Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993), the United States Supreme Court held: “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” (internal quotes and citations omitted). (Best Law Read: What Is A Hostile Work Environment?; What’s The Difference Between Quid Pro Quo And Hostile Work Environment Sexual Harassment?).

Can the company that I work for be liable when non-employees create a hostile work environment?

Best Hostile Work Environment Lawyer Answer: Yes. But employers are not automatically liable for the harassment and discriminatory conduct of non-employees, which can include clients, customers, guests, delivery people, subcontractors, service providers, and anyone else the employee is required to interact with while working. An employer becomes liable when it “fails to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.”  Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 577 (10th Cir. 1990); see also Dunn v. Wash. Cty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005). Furthermore, 29 C.F.R. § 1604.11(e) provides: “An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

Stated more simply, to prove a claim of unlawful hostile workplace against an employer by non-employees, an employee must initially establish that the employer through its managers or supervisors knew or should have known about the harassment or other discriminatory conduct. Next, the employee must show that despite knowledge or “should have” knowledge, the employer failed to take sufficient corrective action. Additionally, the Equal Employment Opportunity Commission (“EEOC”) and most courts will consider the amount of the employer’s control over the particular situation.

How can the company that I work for avoid liability for the harassment of non-employees?

Best Employment Law Lawyer Answer: Employers have an affirmative defense that can use to block liability if the employee meets his or her burden of proof. Specifically, this is known as the Faragher-Ellerth defense, which is based on two United States Supreme Court cases. Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The Faragher-Ellerth defense only will apply when the employer has taken no tangible adverse employment action was taken against the employee. (Best Law Read: What Is An Adverse Employment Action?). Under the Faragher-Ellerth defense, an employer can block liability if the employer can meet its burden of proof to show both of the following:

1. The employer exercised reasonable care to prevent and timely correct the harassing or otherwise discriminatory conduct; and
2. The complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. For example, the second element could be established if the employee failed to take advantage of reporting procedures outlined in an anti-harassment policy or call an available harassment hotline number.

What is an example of employer liability for a hostile work environment created by non-employees?

Best Ohio Employment Lawyer Answer: This is a problem that our lawyers have addressed regularly before. (Best Law Read: Retaliation: Now That’s A Lot Of Waffles!; Does My Job Have To Stop Harassment By Customers?; What Can I Do About Racist Customers? I Need The Top Race Discrimination Lawyers In Ohio!; Race Discrimination: Employers Still Cannot Blame Customers! I Need A Lawyer!; Can My Boss Fire Me Because Customers Don’t Like That I’m Disabled? I Need A Lawyer!; Race Discrimination Lawyer’s Best Answer: Can My Job Discriminate Based On Customer Requests?). In recent news, a female employee just sued Kelley Williamson Company, which owns and operates gas stations and con­venience stores in a variety of locations. The suit alleges that a male customer frequently made unwanted sexual advances and engaged in other offensive conduct directed toward the female worker, who along with other employees repeatedly reported the conduct to Kelley Williamson officials. Nonetheless, the employer declined to take any appropriate action to stop the harassment. Instead, the store manager attempted to shame the female employee by sharing her private medical infor­mation with other employees, which creates a whole different legal problem for the employer (Best Law Read: Can My Employer Share My Medical Information?; Law: Can My Boss Share My Confidential Medical Information?). If these facts prove true, the employer is in pretty significant trouble. The law, as described above, does not let employers turn a blind eye to the unlawful harassment and discrimination by customers that negatively impact its employees .

What should I do if I’m being sexually or racially harassed by a customer?

Best Employment Attorney Answer: If you are searching “I need a lawyer because I’m being harassed at my job by customers and my boss won’t do anything about it” or “how do I get my manager to stop client harassment based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

This employment law website is an advertisement. The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I get help for race discrimination at work”, “What should I do if a customer keeps hitting on me,” “My boss won’t stop customers from using racial slurs” or “I was fired for reporting harassment and discrimination in the workplace”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.