Business Owners: Protecting Yourself from Third Party Harassment

Sexual harassment is a serious problem in today’s workforce. However, not all sexual harassment occurs within a company. Third parties can also create a hostile work environment by harassing employees. Many employers may be surprised to know that they can be held liable for sexual harassment committed by third parties.

These third parties could include vendors, clients, customers, delivery drivers, or even independent contractors. Third parties are not company employees or supervisors, although employers would be liable if employees were engaged in sexual harassment as well.

What is Third-Party Sexual Harassment?

The only difference between third party sexual harassment and more common forms of sexual harassment in the workplace is that the harassment is actually performed by someone outside of your company. The general definition of sexual harassment still applies. That is, the harassment must be so severe that it creates a hostile work environment. This definition often requires repeated actions, and a single act will not generally constitute harassment.

Employer Liability for Third-Party Harassment

An employer will be liable for the third party sexual harassment if the employer knew about the problem or should have known about the problem and did not take corrective action. If your employees complain to you about repeated advances or comments, that may be enough to require you to take action.

Although the standard for the third party sexual harassment is similar to employee sexual harassment, the employer does not have the same degree of control over the third party as they would their own employee. This factor can make dealing with the harassment difficult. Unfortunately, if the client or customer will not change their behavior after you speak to them, you may be forced to end the relationship with that client.

Employers should avoid punishing the employee who is being harassed. You can move employees around to avoid issues with a particular customer, but that movement should not amount to a demotion or other negative consequence for the employee being harassed. The court may see this type of action as an illegal retaliation for reporting the harassment.

What Employers Should Do When an Employee Reports Third-Party Harassment

It takes a lot of courage for an employee to report that a customer or client is harassing him or her. Be sure to talk to your employee to determine what they need to feel safe and comfortable on the job. Make sure that your employee understands that you are on their side, and you will protect their safety and wellbeing.

If the third-party harassment is coming from a regular contact for your employee, talk to the individual about your expectations regarding how they speak and interact with your staff. Sometimes, letting a third party know that certain actions are not acceptable may be enough to stop the harassment. An open line of communication among all parties involved is important.

You should also ensure that the sexual harassment policy is in writing. This includes both internal and external sexual harassment. Be sure that your employees all have a copy of this policy. Annual training for supervisors may also be an effective option to ensure that your employees’ direct supervisors know what to do in a third-party harassment situation.

Although third-party sexual harassment is a relatively new legal development in California, business owners should be aware and prepared for this potential liability. Our employment law team can help you develop the policies and procedures you need to protect your business. Call 925-399-1529 for more information or to set up an appointment.

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Written by Integrated General Counsel

Our focus includes handling a variety of corporate matters and also includes litigation in state and federal courts. Our current practice includes providing transactional services and representing a variety of small and medium-sized companies as their outsourced general counsel.