Third-party sexual harassment is defined as sexual harassment committed by someone other than a fellow 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. Victims can recover compensation for their 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 victims of third-party sexual harassment recover?
1. What is third-party sexual harassment?
Third-party sexual harassment is a form of workplace sexual harassment. The person harassing the employee, 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 employees is also known as:
- Vender 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,
- Venders 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 the employee 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 the employee,
- 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 an employee to demand sexual favors. However, third parties can request a sexual favor as a quid pro quo from a worker for not reporting bad conduct to the worker’s 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:
- The employee is at the receiving end of advances or comments that are unwelcome,
- Those words or the conduct is based on the employee’s sex, and
- They are either severe enough or pervasive enough to negatively alter the conditions of their employment / work performance.3
In order to prove a third party sexual harassment claim based on a hostile working environment, employees have to show that:
- They were an employee at the defendant’s company,
- They were subjected to unwanted harassing conduct from a third party because of their sex,
- The harassing conduct was either severe or pervasive,
- The particular employee filing the lawsuit 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
- The employee was 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 the employee’s assignment so they do not have to deal with a certain client,
- Move the employee’s workstation so they are not the ones to receive deliveries,
- Add other personnel to a project as support for the harassed employee,
- Telling a customer or client to stop harassing the employee 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 a harassed employee to put their employer on notice of the abusive work environment.
4. What damages can victims of third-party sexual harassment recover?
Victims of third-party sexual harassment can recover compensation in a harassment claim against their employer. That compensation is meant to cover the victim’s 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.
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 today to get started.
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.
- California Government Code 12940.