As we have previously noted, employers often wonder what to do when an employee makes a harassment complaint, but the alleged harasser is not another employee. The employer cannot simply do nothing, but it also generally does not have the ability to discipline the alleged harasser as it would in the situation where another employee is the alleged perpetrator. The extent of an employer’s duty in these kinds of situations has troubled employers and their counsel for some time because, even though the EEOC had a few suggestions on the topic, the case law was unclear. A recent ruling in Summa v. Hofstra University et al., however, may provide some clarity.In the case, the employee was a football team manager for the university employer, and she sued the university and two individuals for harassment, alleging that the university’s football players, who were students and thus not employees, made lewd comments about the employee, made gender discriminating comments, created a Facebook page to insult the employee and her boyfriend, and made sexually-suggestive comments to her on the bus ride home from a football game. She complained to the university and the football team manager, who quickly addressed the complaints by speaking with each player involved in the Facebook page and ordering that it be removed, speaking with each player who made sexually related comments on the bus, and kicking a player off the team. The university further required the entire athletics staff to undergo sexual harassment training. Despite these measures, the employee filed a harassment lawsuit.

At the trial court level, the court concluded that there was no basis for legal liability because the university swiftly and appropriately handled all of the employee’s complaints. On appeal though, the U.S. Court of Appeals for the Second Circuit applied, for the first time, the EEOC’s standards regarding non-employee harassers. That guidance provides that employers should be held to the same standards with respect to alleged harassment by a non-employee as it is for alleged harassment perpetrated by a non-supervisory coworker. Applying this rubric, the appellate court determined that even though the football players were not technically employees, the university had a high degree of control them, and by taking prompt action in addressing to the employee’s complaints, it had met its legal obligations to the plaintiff and thus affirmed the decision of the lower court.

However, despite this largely positive ruling for employers, it is still not crystal clear what responsibilities an employer has when it has limited control over the alleged perpetrator. At a minimum though, the recent decision suggests, in applying the EEOC’s guidance, that employers may only be liable for their own negligence and failure to act, indicating that employers may be liable for harassment claims that they knew or should have known about and where they failed to take appropriate responsive action. What type of remedial action that can be taken will be impacted by the amount of control the employer has over the alleged harasser. It is therefore in an employer’s best interest to ensure they have a proper avenue for submitting harassment complaints (including alternate channels of reporting), be aware of all complaints, and address each and every complaint immediately.