We just wrote about “third-party harassment” and cited to our many blog posts in which we have written that a hostile work environment can be created in any way, by anybody, or by any means, if the employer does not address an employee complaint that the workplace has been made hostile by, say, sexually harassing behavior of an employee.
Sexual harassment by someone other than an officer or employee of the company at which the victim works, is actionable harassment. A hostile workplace based upon allegations of sexual harassment is not a function of the status of the harasser but the fact that a hostile work place has been created (by the harasser) which the employer has done nothing to remedy.
Our last post linked to a number of prior lawsuits and court decisions which were examples of who could be a “third-party harasser,” and reported that a lawsuit had just been filed against a large store by a former employee who claimed that she suffered sexual assault and sexual harassment from customers, with the company doing nothing about it — and even worse, mocked her, with a security guard calling her a “stupid bitch.”
And now a new EEOC suit alleges a similar fact pattern. A Chicago big-box store is alleged to have discriminated against a female employee when “it failed to take steps to protect [her] from unwelcome advances of one of its warehouse member-customers.” Seems that the customer stalked the employee: he “pursued, approached, and confronted” her repeatedly. The employee repeatedly complained to her managers about the stalker, and even obtained an order of protection against the stalker.
An EEOC attorney explained that “One of her managers apparently told the young woman that he agreed the man was ‘not right’ and that [the employer] would monitor the situation. But what actually happened was that when the situation persisted and the employee complained to the police,  management allegedly yelled at her and told her to be friendly to the customer.”
Another EEOC attorney got it right when he said: “All employers have a duty to protect employees from sexual harassment whatever form that harassment may take – whether it’s lewd remarks, groping, propositioning or stalking. No employer gets a pass because it is a customer targeting its employee, rather than a manager or fellow employee.”