Businesses Must Take Steps to Prevent Workplace Harassment by Non-employees

A business may be found liable for workplace harassment committed by outsiders, according to a recent decision of the U.S. Fourth Circuit Court of Appeals. In that case, EEOC v. Cromer Food Services, Inc., 2011 WL 733814 (2011), the court held that an employee could sue his employer for failing to prevent harassment he encountered on his sales route.

The Cromer case involved a lawsuit by a delivery driver whose job involved restocking snack and beverage machines owned by his employer but located in various businesses and other facilities. The driver’s route included a local hospital, the employer’s biggest client.

The driver alleged that over a period of several months, two hospital employees harassed him whenever he restocked the hospital’s vending machines. The driver asked his employer to change his route or intervene with the hospital to put an end to the situation, but the employer took no action.

After the driver sued, his employer argued that it could not be liable because it was not responsible for preventing harassment by non-employees, such as the two employees of the hospital. In a broad decision consistent with prior decisions in the 7th, 9th, 10th, and 11th Circuits, the court held that employers covered by Title VII of the Civil Rights Act of 1964 can be liable for on-the-job harassment committed by non-employees, if the employer had actual or constructive knowledge of the situation but failed to take action to protect its employee from the harassment. The court allowed the driver’s suit against his employer to proceed.

No small business wants to hear that its employees are being harassed, whether by other employees or outsiders. But Cromer confirms that if your small business learns that an employee is being harassed on the job by a customer or other outsider, taking action to prevent the harassment may not just be the right thing to do from a moral and ethical perspective but a legal requirement.

By: Guest blogger Steven Koprince, an attorney with Petefish, Immel, Heeb & Hird, LLP in Lawrence, KS. Mr. Koprince’s practice emphasizes government contracts and small business law.