Reprinted from the August 15, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Close Encounters Of The Third-Party Kind

You may think that the behavior of a customer or other third party is out of your control. But it’s not. Just because an employee complains to you of sexual harassment by a non-employee doesn’t mean that you don’t have to take remedial action to stop and prevent the harassment from happening again. You are just as responsible for protecting your employees from harassment by a customer, as you are for protecting them from harassment by a supervisor or co-worker.

THE CUSTOMER ISN’T ALWAYS RIGHT
Joe Matula knocked on the door of his manager, Nick Lawrence, and stepped inside.

“Nick, I need to talk to you about something,” the employee said.

“What is it, Joe?” Lawrence asked. “Is everything all right?”

“A customer just cornered me on the sales floor,” Matula reported, avoiding eye contact. “He propositioned me and then rubbed his hand against my leg.”

“Which customer did this to you?” Lawrence questioned.

“It’s the same guy who was asking some of the other cashiers about me,” Matula responded. “You know the one…he comes in two or three times a week and always stares at me.”

“I know who you are talking about,” the manager replied. “But there’s not much I can do, since I didn’t see it happen. I suggest that you keep your distance from him. He’ll get the message and leave you alone.”

Unfortunately for Matula, however, the customer did not get the message or leave him alone. On two more occasions, he approached the unsuspecting Matula from behind, whispered in his ear, and touched him inappropriately.

“He did it again,” a shaken Matula informed Lawrence after the third incident. “The same customer cornered me and touched me again. Isn’t there anything you can do to stop him?”

“I’m sorry, Joe, but until I see something with my own two eyes, there is nothing I can do,” Lawrence explained.

“Can’t you warn him about his behavior or ban him from the store or something?” a desperate Matula suggested.

“If I talk to him, he’ll just deny it ever happened. It’ll be your word against his,” Lawrence responded. “Just continue to walk away from him.”

Although Matula did his best to avoid the customer at all costs, one evening, the customer followed him into a store restroom and sexually assaulted him.

Matula sued the company for sexual harassment under Title VII. The court pointed out that an employer may be responsible for sexual harassment of an employee by a customer only if the employer knew or should have known about the acts of harassment and failed to take remedial action. In court, Lawrence argued that although he knew about the incidents between Matula and the customer, the assault was not foreseeable or predictable. The customer’s actions before the assault were not severe or pervasive enough to alter Matula’s conditions of employment.

Said the court: The assault may not have happened, however, if prior remedial measures, such as banning the customer from the store or warning him about his behavior, had been taken. Also, to be considered sexual harassment, the victim must have perceived the environment to be sexually offensive. It was clear that Matula perceived his environment to be sexually offensive, since he hid from the customer and complained about the conduct.

WHEN THE CUSTOMER IS WRONG
Despite the mantra “the customer is always right,” you must take appropriate action to stop and prevent customer or other third-party behavior that is obviously wrong. The fact that you did not witness it is no excuse to bury your head in the sand; get the story from other witnesses. Encourage employees to report incidents of harassment by a customer or third party by taking immediate remedial action to investigate all complaints. Even if the behavior does not rise to the level of harassment, employees should not be expected to deal with inappropriate or rude behavior on their own.

ACTION TIPS

When you determine that wrongdoing by an outside party has occurred, follow these suggestions.

• Mobilize the rest of the staff to protect their co-worker. Have them alert you when they spot the offending party, so you can keep a close eye on him/her.

• Warn the customer or third party of the consequences of continued harassment (e.g., the customer will be banned from the premises; you will file a complaint with the local authorities if the harassing conduct continues).

• Get the harassed employee out of the line of fire. In no uncertain terms, inform the customer or third party that he/she is not to make contact with the employee. Don’t put the onus on the employee to remove him/herself from the situation.

• Don’t hesitate to call security or the authorities if the harasser’s behavior escalates and he/she won’t leave the premises.

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