A female employee worked as a customer service representative. The third-party harasser was a male sales representative who called on her daily for three years. During this time, he showed her pictures of naked women on his cellphone, referred to his hung-over state in racially derogatory terms, and called her by a racial and sexual epithet. On other occasions, the employee apparently overheard the harasser make offensive racial and sexual comments.
The employee asked the harasser to stop using offensive language and discussed the harassment on numerous occasions with her direct supervisor as well as the harasser’s employer. Her direct supervisor, who witnessed some of the offensive incidents, acknowledged that the harasser was a “pig,” but took no real action to halt the harassment; the harasser’s employer just laughed. When the employee’s direct supervisor took no action to stop the harassment for three years other than ineffectively telling the harasser to stop using inappropriate language, she complained to the human resources department. The harasser was initially banned from the facility, but thereafter permitted to return on the condition that he not communicate with the employee. The employee, claiming to suffer from anxiety and depression owing to the possibility of further harassment, took a two-month medical leave of absence and resigned shortly after returning from that leave.
The employee sued her own employer for allowing sexual and racial harassment. A federal district judge granted the employer’s motion for summary judgment, finding that the harassment was not objectively severe or pervasive and that liability could not be imputed to the employer because the employer’s response to the harassment was adequate.
The Fourth Circuit Court of Appeals, in Richmond, Virginia, disagreed. In Freeman v. Dal-Tile Corp, 2014 U.S. App. LEXIS 8030 (4th Cir. 2014), the court ruled that: (a) a reasonable jury could find that the three years of sex- and race-based harassment were objectively severe or pervasive; and (b) an employer is liable for third parties’ creation of a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to stop it. In this case, the employee’s supervisor actually witnessed some of the incidents and was notified of others, but initially took no action, and when it finally did respond, its response was neither prompt nor adequate.
To deal with third-party harassment an employer should:
- take employee complaints of harassment by a third party as seriously as complaints of harassment by a supervisor or co-worker;
- adopt or amend harassment policies to prohibit offensive conduct by third parties such as customers, contractors, and vendors;
- when harassment is substantiated, fully document the remedial actions taken; and
- always follow up to ensure that the harassment has stopped.