“This is something that happens in custodial environments, period.”1
“Put [your] big girl panties on and go back to work.”2
“You can handle it. You’re a big girl.”3
— Actual quotes from supervisors and managers, reacting to concerns about third-party harassment and discrimination.
Until recently, the statements above may have represented a commonly-held perspective about harassment from clients, customers, and contractors: that a certain degree of inappropriate behavior was inevitable. But each of these statements is from a case in the past five years, where employees were not satisfied with management’s responses to their complaints, and eventually took those employers to court. In each case, courts found that employers had potential liability for the conduct of third parties.
In general, an employer is liable for harassment by third parties when the employer is negligent in responding to inappropriate conduct: if the employer knew or should have known of the harassment and failed “to take prompt remedial action reasonably calculated to end the harassment.”4 The First Circuit reminded employers of this principal in the recent case of Roy v. Correct Care Solutions, which involved an analysis of federal law under Title VII, in addition to Maine state law.5
In the Roy case, the plaintiff was a nurse who worked at a correctional facility in Maine. The Plaintiff’s employer was Correct Care Solutions (CCS), a contractor with the Maine Department of Corrections (MDOC). Plaintiff alleged that MDOC employees had harassed her and retaliated against her for protected activities. The First Circuit Court determined that summary judgment was inappropriate in the case, and that a jury should determine whether CCS had acted reasonably in its response to Plaintiff’s concerns about harassment.6
Based on cases like Roy, employers should be on notice that they are not free to ignore or disregard harassment or discrimination simply because it originates from a client, customer, or other non-employee. Instead, courts expect that employers will make reasonable efforts to curtail the conduct, once employers are (or should reasonably be) put on notice of the problem.
Because employers are required to act upon learning of these issues, management must ensure that they have appropriate mechanisms in place for employees to lodge complaints. Employers should clearly articulate the prohibition against harassment and discrimination by third parties, and consider including this prohibition in a written harassment and discrimination policy.
If supervisors or managers witness potentially inappropriate third-party conduct, they should be trained not to ignore the issue, but to intervene if needed. Even where a supervisor or manager only hears one or two comments that may not be very serious, such information may be sufficient to place the employee on notice of harassing conduct.
For example, in a case involving dealers at a Las Vegas casino, a court held that a triable issue of fact existed as to whether an employer was on notice of harassment because one or two of its supervisors had witnessed customers calling various employees “f**king b**ch[es]” on various occasions over a period of years. The Plaintiff alleged that a customer called her a “f**king b**ch” repeatedly, but acknowledged that she never shared her concern with Human Resources. Plaintiff was not entirely certain that supervisors had overheard her being called this name. However, the court reasoned that a jury could still find sufficient evidence to support a conclusion that the employer “‘knew or should have known’ about the ongoing harassment of [Plaintiff] by customers,” given its managers’ observations of similar comments (perhaps in other contexts).7
When a complaint is brought to an employer’s attention, it is important to listen carefully and thoroughly, and document the specifics of the concerns raised. For example, the person receiving a complaint should be trained to ask questions about the incident(s) including when, where, and how often the conduct occurred. The recipient of the complaint should assure the employee that the organization takes the complaint seriously, and should be prepared to intervene to stop inappropriate third-party conduct when necessary. Employers should consider working with the reporting employee to identify possible solutions to the problem.
Supervisors and managers should also be trained regarding how to intervene in situations that they personally observe, to prevent or correct inappropriate conduct. In some circumstances, a manager’s presence may be all that is needed to deter a third party from acting inappropriately with staff. In more extreme cases, the supervisor may need to speak directly to the third party or, if necessary, prevent the third party from accessing the workplace entirely.
* Anne Jenness is admitted in New Hampshire and California.
1. Brown v. Cook Cty., 2018 U.S. Dist. LEXIS 106746, *15
2. Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 323 (5th Cir. 2019)
3. United States EEOC v. GNLV Corp., 2014 U.S. Dist. LEXIS 177439, *21
4. Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014)
5. 914 F.3d 52 (1st Cir. 2019)
6. Id. at 69
7. United States EEOC v. GNLV Corp., 2014 U.S. Dist. LEXIS 177439, *51 – 52