The employee in EEOC v. Cromer Food Services, Inc., brought a harassment claim under Title VII (http://tinyurl.com/yl7jjbb), complaining his employer failed to protect him from regular anti-gay harassment by two individuals who were not co-workers. In adopting a negligence standard for considering whether an employer may be liable for the activities of non-employees in a claim for sexual harassment, the federal Court held that the employer would be liable if it knew or should have known that the employee was the subject of anti-gay harassment and failed to take appropriate actions to stop it. From the facts available to the appeals Court, it was reasonable to conclude that the employer had such knowledge, didn’t follow its own harassment complaint procedure, and ultimately failed to protect the employee from lewd, unwanted, and inappropriate anti-gay harassment.
In defending against the claim, the employer argued that the employee’s complaints were too vague, and that the employee failed to follow the company’s required harassment complaint procedure by not reporting the harassment directly to the president of the company. The trial court agreed, ruling in favor of the employer.
Reversing the trial court on appeal, the Fourth Circuit held that the reasoning of the employer and the trial court ignored the “clear evidence” that the employee tried to report the nature and extent of the harassment and was “effectively ignored at all levels” of management. The Court found that the employer “still had a duty to investigate or take other measures to combat harassment.”
There are a number of lessons that employers can take away from EEOC v. Cromer, not least of which is that harassment of lesbian and gay employees may be illegal under federal law, despite the fact that there are no specific protections. Employers should be keenly aware of this precedent and take steps necessary to conform their policies and practices. Proper training of employees as to what constitutes “harassment” is imperative — same-sex harassment and harassment of gay and lesbian (and, arguably, bisexual and transgender) employees is still considered “harassment” under the law. It is critical that employers review and update their harassment policy statements, reporting mechanisms, and employee training to ensure compliance.
Another key take-away from EEOC v. Cromer is that a complaint procedure whereby employees must report harassment to a company executive, without an alternative procedure, is most times insufficient. The Court pointed out that employees are often intimidated by top executives, or lack knowledge of who the higher-ups are. Therefore, employers are encouraged to provide alternate methods of reporting harassment — such as to human resources — and to properly train supervisors and human resources personnel on handling such reports.
Finally, employers can be held liable for harassment of employees by non-employees. If the employer knows or should know that an employee is being subjected to harassment by non-employees, a failure to take steps to protect the employee exposes the employer to liability. Maintaining a policy that requires reporting of this kind of harassment is a best practice, but ensuring compliance with the policy is what will help prevent liability.