Third-party sexual harassment is sexual harassment that is committed by someone other than another employee. This may include a:
- Independent contractor, or
- Another company outsider.
While the conduct is not coworker harassment, employers still have to work to prevent it. If they do not work to prevent it, employers can be held liable. Victims can recover compensation for their experiences and losses.
In this article, our California employment lawyers 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 harassment. However, he tells Beth to “show more skin” to attract more customers.
Third-party sexual harassment is also known as:
- Vender harassment, or
- Contractor harassment.
It is prohibited by federal 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 businesses in it. He catcalls and makes sexually-tinged comments every time a female employee comes in 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. This falls into 2 categories:
- “Quid pro quo” sexual harassment, and
- Harassment that creates a hostile work environment.1
Both of these types of sexual harassment require the conduct to be unwelcome. Sexual conduct in the workplace that is mutual or was welcomed by the employee cannot be harassment.
2.1. Quid pro quo sexual 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.3
In order to prove a case of third party sexual harassment 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.
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 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, 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 did nothing instead, they are more likely to be held liable.
These responsibilities are only triggered if the employer knew or should have known of the harassment.6 Filing a report with a supervisor is often enough for a harassed employee to put their employer on notice.
4. What damages can victims of third party sexual harassment recover?
Victims of third party sexual harassment can recover compensation in a lawsuit 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 of a coworker does not make it permissible. In California, your employer has 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 employment lawyers today to get started.
California Government Code 12940.
California Government Code 12940.