Third-Party Sexual Harassment – When is an employer liable?

Third-party sexual harassment is sexual harassment committed by someone other than an employee or supervisor at the company. While the conduct is not coworker harassment, employers still have a legal duty to prevent it.

Here are four key things to know:

1. Third-party sexual harassment is prohibited under both federal and California state law.
2. Common perpetrators include vendors, customers, clients, independent contractors, or another company outsider.
3. Third-party sexual harassment can be classified as either quid pro quo sexual harassment and/or a hostile work environment.
4. If your employer does not take reasonable action to prevent the harassment, you can sue for damages.

Here at Shouse Law Group, we have represented countless victims of third-party sexual harassment. We have a long track record of succeeding in not only stopping the harassment but also winning a large financial settlement from the employer and sometimes the third-party harasser as well.

In this article, our California labor and employment lawyers will address the following topics:

• 1. Elements
• 2. Types of Harassment
• 3. Employer Duties
• 4. Damages
• 5. Retaliation
• Additional Resources

1. Elements

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 is prohibited by federal law and state law in California, including:

• California Government Code 12940, and
• The Fair Employment and Housing Act (FEHA).

Who are third parties who can commit workplace sexual harassment?

Anyone who is not a coworker or other employee can commit third-party sexual harassment. In our experience representing victims, we have seen harassment being perpetrated by such third parties as:

• Independent contractors who provide a service to the company,
• Vendors from other companies who interact with the company’s employees,
• Customers,
• Clients, or
• Delivery drivers and other personnel.

Third-party sexual harassment is also referred to as vendor harassment or contractor harassment.

2. Types of Harassment

For there to be third-party sexual harassment, there still has to be workplace sexual harassment. Such conduct falls into two categories:

1. “Quid pro quo” sexual harassment, and
2. 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.

Quid pro quo harassment

Quid pro quo sexual harassment involves a favorable workplace decision in exchange for sexual conduct.²

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.

Hostile work environment

Third-party sexual harassment is more likely to come in the form of a hostile working environment.³

In order to prove a third-party sexual harassment claim based on a hostile working environment, you have to show that:

1. You were an employee at the defendant’s company,
2. You were subjected to unwanted harassing conduct from a third-party because of your sex,
3. The harassing conduct was either severe or pervasive,
4. You found the working environment hostile or abusive,
5. A reasonable and similar employee would have found the working environment to be abusive or hostile,
6. The employer knew or should have known about the harassing conduct, but did not take immediate and appropriate action to fix it, and
7. You were harmed by the harassing conduct.⁴

Changing an employee’s assignment is one possible remedy to prevent third-party harassment claims and legal liability.

3. Employer Duties

Employers have a legal duty to take immediate and appropriate action to investigate the harassment allegations and prevent further 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. In our experience representing third-party sexual harassment victims, we have compelled employers to:

• Give the victim the choice to change their assignment so they do not have to deal with a certain client,
• Move the victim’s workstation so they are not the one to receive deliveries,
• Add other personnel to a project to help support the victim,
• Tell the problem customer or client to stop harassing the victim in accordance with the company’s anti-harassment policy,
• End the business relationship with the client,
• Kick the customer out of the store, or
• Take out a restraining order against the harasser.

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 We find that 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. Damages

As a victim of third-party sexual harassment, you can recover compensation in a harassment claim against your employer. We fight for all the compensation available 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.

In our experience, the more proof we have of the harassment, the larger the settlement. So it is vital you keep all the evidence you can such as text messages from the harasser, video surveillance footage of the harassment, and the names of eyewitnesses who saw the harassment.

5. Retaliation

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

Additional Resources

For a deeper dive into third-party sexual harassment, refer to these scholarly articles:

• She said, he said. the influence of remedial accounts on third-party judgments of coworker sexual harassment – Journal of Management.
  
• Third-Party Sexual Harassment in the Workplace: An Examination of Client Control – Hofstra Labor & Employment Law Journal.
• Sexual Harassment of Employees by Customers and Other Third Parties: American and British Views – Texas Tech Law Review.
• The Customer Is Always Right . . . Not! Employer Liability for Third Party Sexual Harassment – Michigan Journal of Gender & Law.
  
• The Sexual Harassment Revolution: Employer Liability for Third Party Sexual Harassment – UMKC Law Review.

Legal References: