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How Can I Be Responsible for the Conduct of Someone Else’s Employees?
We are seeing an increasing array of claims based on situations like these:
- A waitress at an all-night restaurant reports to the restaurant manager that four, possibly-inebriated patrons at one of her tables are making lewd and sexually-threatening comments to her, and she asks that someone else be assigned to that table. The manager tells her that it’s the kind of thing that sometimes happens in the business, and not to worry about it.
- A female employee in a consulting firm is assigned to work with one of the firm’s best clients. She reports back to the partner in charge that the client keeps inviting her to dinner and making suggestive comments, all of which make her very uncomfortable. The managing partner does not want to offend the client, who comprises a substantial portion of the firm’s income. He tells the employee that it would not be a good career move to alienate the client, and leaves it at that.
- A female aide in a nursing home reports to the administrator that one of the male residents to whom she is assigned has attempted to grope her, and she is very uncomfortable in dealing with the resident. The administrator says she will talk to the resident if it happens again.
Most of the companies we deal with understand these kinds of issues as employee relations problems, but they do not recognize them as potential “sexual harassment” claims that can lead to substantial damages under federal law. “My employees didn’t harass anybody,” they tell us. “How can I be liable for sexual harassment by someone who doesn’t even work for my company?”
The answer is that sexual harassment (and, for that matter, harassment based on race, ethnicity and other protected characteristics) is not defined by who does the harassing. So long as the harassment is work-related, all the same rules apply, no matter whether the alleged harasser is or is not working for the employer: if the employee is subjected to conduct that unreasonably interferes with the employee’s work performance or subjects the employee to an intimidating, hostile or offensive work environment, and the employer has some reason to know about it, the employer must take some immediate corrective action. Don’t allow the fact that the harassment is coming from a non-employee lull you into a false sense of security.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
