The hidden dangers of third party harassment

What is Third Party Harassment?

You notice that Pete, the man who comes to fill the soda machines every Thursday, gives your receptionist a hard time when he comes to the office, saying sexually inappropriate comments to her. But, your receptionist hasn't complained about it and besides, he's not your employee so there's not much you can do about it, right?

Wrong.

Even though Pete isn't your employee, your organization can still be held liable for his actions if one or more of your employees feels harassed by him while at work. This type of harassment is called third party harassment and can be one of the trickier issues for Human Resources Managers to handle.

Organizations often think that if a person isn't employed by the organization, the organization cannot be held liable for harassment that non-employee may participate in. This is an incorrect assumption. Employers are responsible for maintaining a harassment-free workplace for employees, regardless of who is doing the harassing.

There are multiple types of third party harassment. The case above involving Pete is harassment by a non-employee directed at an employee. If the tables were turned, and the receptionist was harassing Pete, it would be harassment by an employee to a non-employee, another type of third party harassment. Retaliating against an employee for reporting that another employee is being harassed can also be considered third-party harassment.

Court Decisions Involving Third Party Harassment

According to the Equal Employment Opportunity Commission (EEOC) guidelines, employers may be held liable for harassment by non-employees if the employer knew, or should have known of the harassment and did not take action to correct the situation. These guidelines have been held up in court multiple times. For example;

In Powell v. Las Vegas Hilton, a casino dealer sued her employer alleging that many customers at different times made sexually inappropriate comments to her while she was working. Powell alleged that the supervisor on duty did not take sufficient action to stop the inappropriate comments when notified. Powell was eventually terminated for rudeness to customers, though in the suit she alleged that she was actually terminated as retaliation for reporting a sexually hostile working environment. In this case the court ruled that "in the appropriate case, an employer could be liable for the sexual harassment of employees by non-employees, including its customers," and found in favor of the plaintiff.

In Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee, The Supreme Court ruled on a different type of third party harassment. In this case, an employee, Crawford, did not file a sexual harassment complaint against any fellow employees. However, when Crawford was interviewed for an investigation regarding a complaint against an employee that another employee had filed, Crawford reported that the employee in question had sexually harassed her at work as well. The employee in question was not disciplined, but Crawford was terminated shortly after the investigation, accused of embezzlement (a charge that was later found to be false). Crawford argued that she was terminated in retaliation for information she gave in a sexual harassment investigation. The County's stance was that because Crawford had not filed a report of harassment, she could not claim retaliation. Lower courts found in favor of the defendant, but the Supreme Court overruled the lower courts, stating; "The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.  We hold that it does."

Both of the above cases and the EEOC's guidelines reiterate that it is the responsibility of the employer to create an environment free of harassment for employees, regardless of who may be in the workplace or what involvement employees may have with sensitive cases.

How to Handle Third Party Harassment

So what should you do to protect your organization from a third party harassment law suit? The first line of defense is to train, train, train! Train your employees thoroughly and often on what actions are appropriate within the workplace and what actions are not appropriate. Make sure your employees are aware that harassment can involve non-employees as well as employees. Train them on what steps to take if they feel they, or a fellow employee, are being harassed. This involves making sure your organization has a clear, easy to understand policy for employees to follow if they feel harassment is occurring. Your employees should be trained on this policy and it should be published multiple places, including in the employee handbook- a document that should be signed by each employee. Your organization may even consider conducting anti-harassment training for clients or vendors that are frequently in contact with your employees.

If an episode of third party harassment is reported, conduct an investigation immediately. Make sure to treat all employees equal during this time, even those involved in the investigation. Because third party harassment situations differ greatly, there will be no one-size-fits-all solution to your organization's problem. However, in your reporting policy there should be a guideline of what the reporter can expect will happen when an incident of harassment takes place.Your organization should try to stay as close to the published policy as possible. The solution to the incident may be as simple as asking a vendor to send a different representative to work with your organization or granting a request designed to protect an employee involved in a harassment investigation. Or, the solution could be as difficult as cutting ties with a large client. The important thing to remember is that you need to react to the situation and explore all aspects of the issue as thoroughly as possible.

Third party harassment can be difficult to navigate, as it often involves people who are not employees of your organization. However, the EEOC, along with recent court cases regarding this topic ruling in favor of employees, have dictated that third party harassment must be taken seriously. Train your employees and investigate every issue. Save your organization from a costly law suit and save your employees from a traumatic experience.