In a recent opinion, a federal court held that a retail customer’s offensive acts directed toward a number of female employees may support a claim of sexual harassment by the employees against the retailer. EEOC v. Fred Meyer Stores, Inc., No. 3:11-cv-00832 (D. Or. June 17, 2013).

The EEOC alleged that a Fred Meyer store located in Oak Grove, Oregon subjected female employees to a sexually hostile work environment because of their sex because the store allegedly tolerated offensive conduct by a repeat customer. The employees claimed that they were sexually harassed by the customer on multiple occasions and the store failed to adequately address the problem, despite its knowledge of the alleged conduct. The store moved for summary judgment, contending the alleged conduct was not sufficiently severe or pervasive to be actionable harassment. The court denied the motion, however.

The court held that the alleged conduct was sufficient to support a finding of harassment for three reasons. First, many of the employees complained to management about the alleged conduct, indicating they found the conduct subjectively offensive. Second, much of the alleged conduct was very offensive, including alleged touching of employees’ breasts. Third, the employees testified they were aware of offensive conduct directed to each other, which contributed to an atmosphere of fear.

The decision highlights how important it is for managers and employers to take employee complaints regarding inappropriate customer behavior seriously, particularly where the customer’s problematic behavior constitutes a pattern of conduct. Companies must take action to protect employees from these customers, including taking steps such as banning the customer from the store. Without taking such proactive steps, inappropriate customer behavior may support a claim of sexual harassment by the employees against the retailer.