The term “third-party sexual harassment” refers to sexual harassment committed by someone other than an employee or supervisor at the company. Common perpetrators include:
- Independent contractors, or
- Another company outsider.
While the conduct is not coworker harassment, employers still have a duty to prevent it. If they do not take reasonable action to prevent it, employers can be held liable. You can recover compensation for your experiences and losses.
In this article, our California labor and employment lawyers will explain:
- 1. What is third-party sexual harassment?
- 2. What is sexual harassment in the workplace?
- 3. What do employers have to do to prevent third-party sexual harassment?
- 4. What damages can I recover as a victim of third-party sexual harassment?
- 5. Can my employer retaliate against me for reporting third-party sexual harassment?
1. What is third-party sexual harassment?
Third-party sexual harassment is a form of workplace sexual harassment. The person harassing you, though, is not a coworker or boss. This makes it different from a typical sexual harassment case. Employers have less control over these third parties than over their employees.
Example: Beth is a bartender. Every day, she is sexually harassed by bar patrons. The owner of the bar knows about the lewd harassment and inappropriate behavior. However, he tells Beth to “show more skin” to attract more customers.
Third-party sexual harassment of you is also referred to as:
- Vendor harassment, or
- Contractor harassment.
It is prohibited by federal law and state law in California, including:
- California Government Code 12940, and
- The Fair Employment and Housing Act (FEHA).
1.1. Who are third parties who can commit workplace sexual harassment?
Anyone who is not a co-worker or other employee can commit third-party sexual harassment. Some of the people who fall into this category include:
- Independent contractors who provide a service to the company,
- Vendors from other companies who interact with the company’s employees,
- Clients, or
- Delivery personnel.
Example: Clyde is the doorman for a building with numerous different companies in it. He catcalls and makes comments of a sexual nature every time a female employee comes into the building.
2. What is sexual harassment in the workplace?
For there to be third-party sexual harassment, there still has to be workplace sexual harassment. Such conduct falls into two categories:
- “Quid pro quo” sexual harassment, and
- Harassment that creates a hostile work environment.1
Both of these types of sexual harassment require unwelcome sexual advances. Sexual conduct at a worksite that is mutual or was welcomed by you cannot be harassment.
2.1. Quid pro quo harassment
Quid pro quo sexual harassment involves a favorable workplace decision in exchange for sexual conduct.2
That favorable workplace decision can involve:
- A decision not to demote or transfer you,
- Overtime work, or
- Getting a favorable project assignment.
Quid pro quo sexual harassment is uncommon in the third-party context. Third parties like independent contractors tend not to have enough leverage over you to demand sexual favors. However, third parties can request a sexual favor as a quid pro quo for you not reporting bad conduct to your supervisor.
Example: Grace is working with an independent contractor when she makes a mistake while doing data entry. The independent contractor offers to take the blame for a sexual favor.
2.2. Sexual harassment that creates a hostile work environment
Third-party sexual harassment is more likely to come in the form of a hostile working environment.
A working environment can be made hostile by sexual harassment if:
- You are at the receiving end of advances or comments that are unwelcome,
- Those words or the conduct is based on your sex, and
- They are either severe enough or pervasive enough to negatively alter the conditions of your employment / work performance.3
In order to prove a third party sexual harassment claim based on a hostile working environment, you have to show that:
- You were an employee at the defendant’s company,
- You were subjected to unwanted harassing conduct from a third party because of your sex,
- The harassing conduct was either severe or pervasive,
- You found the working environment hostile or abusive,
- A reasonable and similar employee would have found the working environment to be abusive or hostile,
- The employer knew or should have known about the harassing conduct, but did not take immediate and appropriate action to fix it, and
- You were harmed by the harassing conduct.4
Example: Andrea serves as the point of contact between her employer and a marketing firm. She tells her boss that she is constantly being harassed in meetings with the firm. Her boss shrugs and does nothing about the harassing behavior even though it goes against the company’s sexual harassment policy.
3. What do employers have to do to prevent third-party sexual harassment?
Employers have a legal duty to take immediate and appropriate action to prevent the harassment. If they fail in either regard, they can be held liable for sexual harassment.5
What constitutes immediate and appropriate corrective action depends on the situation. It can require the employer to:
- Change your assignment so you do not have to deal with a certain client,
- Move your workstation so you are not the one to receive deliveries,
- Add other personnel to a project as support for you,
- Telling a customer or client to stop harassing you in accordance with the company’s anti-harassment policy, or
- Ending the business relationship with the client or kicking a customer out of the store.
The amount of control that the employer has over the third party will matter. If the employer could easily have stopped the harassment, but took no remedial action, a court may find that there was employer liability.
These responsibilities are only triggered if the employer knew or should have known of the harassment.6 Filing a report with a supervisor in accordance with the company’s complaint procedure is often enough for you to put your employer on notice of the abusive work environment.
4. What damages can I recover as a victim of third-party sexual harassment?
As a victim of third-party sexual harassment, you can recover compensation in a harassment claim against your employer. That compensation is meant to cover your losses, including:
- Lost wages, in the form of back pay,
- Missed income in the future, in the form of front pay,
- Mental anguish,
- Pain and suffering, and
- Medical expenses for health conditions caused by the stress of a hostile working environment.
5. Can my employer retaliate against me for reporting third-party sexual harassment?
No. Your employer may not retaliate against you for taking a legally protected action, which includes reporting 3rd-party sexual harassment. If your employer retaliates against you in any way, you can file a complaint with the Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH).
Depending on the nature of the retaliation, you may be able to
- recover back wages,
- recover damages for emotional distress and reputational damage,
- get promoted, or
- be reinstated.7
Call us for help…
Just because the person harassing you at work is not your boss or a coworker does not make it permissible. In California, it is the employer’s responsibility
- to address harassment complaints and
- to take steps to put a stop to it.
If they do not, filing a lawsuit that invokes your right can be a wise move. Contact our California sexual harassment lawyers for help with this process.
Also, see the United States Equal Employment Opportunity Commission (EEOC) for more information.
- See Holmes v. Petrovich Development Co., 191 Cal.App.4th 1047 (Cal. App. 2011).; see also Title VII of the Civil Rights Act of 1964, which protects people targeted on the basis of their gender, race, color, religion, national origin, age, disability or any other legally protected characteristic; see also 29 C.F.R. § 1604.11 (1994); see also EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018), which upheld the District Court regarding whether a reasonable jury could conclude that the alleged harasser’s conduct was severe enough to cause a hostile environment.
- Mogilefsky v. Superior Court, 20 Cal.App.4th 1409 (Cal. App. 1993).
- Hughes v. Pair, 46 Cal.4th 1035 (California Supreme Court, 2009).
- California Civil Jury Instructions (CACI) 2521A.
- California Government Code 12940.
- Government Code 12965 GC. Government Code 12653 GC. Complaint Process, Civil Rights Department, State of California.