Whenever I conduct anti-harassment training for employers, one of the concepts I address is the employer’s obligation to protect employees from sexual and other forms of harassment by third parties who are neither employed by, nor affiliated with, the employer but who are in regular contact with the employer’s employees. Recently, in Hewitt v. BS Transportation of Illinois, No. 18-712, 2019 U.S. Dist. LEXIS 6407 (E.D. Pa. January 10, 2019), a federal judge was unwilling to dismiss a claim filed by an employee against his employer alleging that his employer failed to take effective corrective action to address harassing conduct happening to the employee at the hands of an employee of one of Defendant’s customers.
As I explain during my trainings, even though third parties such as the customer in Hewitt are not technically under the control of the employer, the employer’s duty to provide a workplace free of harassing conduct extends to making sure that visitors, vendors, or other third parties do not engage in harassing conduct against company employees.
In Hewitt, Plaintiff claimed that while loading fuel at a customer’s site during the course of his employment transporting fuel for his employer, a customer’s employee made sexual advances towards him, including grabbing Plaintiff’s buttocks, shoving him into the trailer of his freight car, and asking him if he “liked that?” According to Plaintiff, he demanded that his employer address the issue, but it did not do so adequately because, though advising the customer to address the issue, the harassment nevertheless continued.
The employer sought to dismiss the harassment allegations lodged against the company by arguing that, because the harassment happened by a non-company employee, there was no liability under the federal Title VII law. The court rejected this argument. While recognizing that the issue was one of first impression in this federal appeal circuit, the district judge nevertheless refused to dismiss the harassment charge because appeal courts in other circuits have in the past allowed such third party complaints, reasoning that where the employer has knowledge of the harassment against the employee, it must do something to investigate and stop it consistent with the requirements of Title VII.
In the current “Me Too” age, employers are wise to understand the full scope of their obligations to prevent harassing conduct towards its employees, and this duty includes addressing employee complaints about harassing conduct of third parties where the conduct detrimentally impacts the working environment for the company employee. Accordingly, with the new year just beginning, it is a prime opportunity for employers to reeducate its workforce through trainings about both the evils of harassment, and on the legal duties imposed upon employers to provide workplaces free of such illegal conduct.
Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.