Often employers focus on preventing harassment by one employee to another, but what happens when an employee is harassed by a third party, like a customer or patient? Recent court decisions have reaffirmed that, absent taking reasonable steps to address and rectify the situation, employers can be on the hook for third-party harassment of their employees.
The EEOC recently hit Costco Wholesale Corp. with a sexual harassment suit in Illinois federal court over its failure to protect a former female worker from being stalked by a customer. The agency argues that by failing to shield the employer from the unwelcomed advances of a customer, the wholesale giant violated Title VII. The EEOC investigation revealed that the employee, Dawn Suppo, repeatedly complained to her managers about being confronted and pursued by a male “warehouse member” at the Glenview, Illinois store where she worked. Despite her complaints, however, Costco managers failed to take any steps to resolve the situation. When the harassment persisted, the employee complained to the police, only to be reprimanded by Costco managers who told her to be friendly to the customer.
The suit alleges that Costco discriminated against Suppo by creating and tolerating a sexually hostile work environment consisting of offensive sexual comments, unwelcome touching and advances and the customer’s stalking and alleges that Suppo was ultimately “constructive discharged.”
“No employer gets a pass because it is a customer targeting its employee, rather than a manager or fellow employee,” said Chicago area EEOC Attorney John Hendrickson, employers have an obligation to protect workers even when the harassment comes from a patron.
Similarly, last month a federal court judge in Hawaii recently denied summary judgment of a hostile work environment claim brought by Martha Wilson, who worked as the Clinical Manager for the Community Dialysis Center of Lanai. While treating a dialysis patient, the patient became angry, yelled and cursed at her, and he and Wilson got into a verbal altercation. A second incident took place within the same week, resulting in a police report. In an effort to minimize her interactions with the patient, Wilson changed the patient’s treatment schedule to avoid being alone with him. The employer, despite being aware of the incidents, placed her on investigatory suspension and then terminated her. In denying the employer’s motion for summary judgment, the judge noted that an issue of fact existed as to whether the employer took adequate remedial measures to deal with the alleged harassment.
Employers are well-advised to remember that an employer may be liable for failing to take adequate remedial measures to end alleged harassment of an employee, regardless of who is the harasser.