We have commented in many blog posts 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.
A newly filed lawsuit gives us a good opportunity to discuss “Third-party sexual harassment.”
Third-Party Sexual Harassment
“Third-party sexual harassment” – that is, 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.
As an EEOC lawyer once put it: “Employers are responsible for ensuring a harassment-free workplace for their employees, regardless if the harasser is a co-worker, manager or customer. There should be no tolerance for repeat offenders and serial harassers.”
We have cited many examples of third-party harassment:
*** a case where a store took no steps to remedy a situation where a customer was groping female employees;
*** a case where the harasser was an incredibly racist and sexist independent contractor;
*** a class action settled for $200,000 by the EEOC against a restaurant for permitting female servers to be sexually harassed by a customer, a Palm Beach County sheriff’s deputy, who allegedly frequently grabbed their breasts and buttocks, made frequent sexual innuendos, and invited them to join in a ménage a trois;
*** a case we wrote about on February 4, 2012, where a female prison guard in Iowa sued prison officials under a “third-party harassment” theory claiming that sexually explicit and violent movies which inmates were allowed to see caused them to sexually harass her.
Can A Vile Parrot Create A Hostile Work Environment?
And, of course, you might remember (or choose not to) our blog yarn about the parrot (true story!) kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended attending female nurse. We asked whether an employer can be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee by, for example, a parrot?
The nurse’s complaints to her supervisor were laughed off, but she got the last laugh because the court found a hostile work environment based upon sexual harassment. It made no difference whether the harassing comments came from a supervisor or a bird — what was legally sigificant was that the employer took no steps to remedy the complaint of the offended employee — such as ejecting the parrot (and its owner), or permitting the employee to work with other patients.
Teens As Victims
We have also reported that retail workers — especially teens — are particularly vulnerable to harassment, third-party or otherwise. They are victims of harassment more often because of their relatively low status and power in the workplace; as with people victimized throughout society, they are more often the victims of this “power differential.”
Low Workplace Status And Power Differential
On December 27, 2012 we published the following about low status and power differential in the workplace correlating with sexual harassment of younger workers:
“A study by Illinois State professors Kimberly Schneider and Patricia Jarvis (and reported by Business News Daily) has found that adolescents employed as sales clerks or flipping burgers are more likely to be sexually harassed by older co-workers than adult employees, and more likely to be harassed than adolescents in jobs that provided more meaningful work and autonomy. Significantly, such harassment can lead to lower job satisfaction, lower skill development (especially in females), and can impact performance in school, absenteeism, tardiness and grades.
It has now been reported that a lawsuit has been filed against Urban Outfitters by a former employee who claims 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 retaliated against her.
So she quit. She told the Daily News that “I felt traumatized. I felt I was being punished. They made it their mission to make me feel invalidated.”
She alleges in her suit that a customer grabbed her lip, licked her cheek, and grabbed her dress while trying to pull her chest out of it. Earlier, a security guard told her that a customer had been following her and videoing up her skirt.
In all of these cases she claims that other than ejecting the customers, the police were never called, nor was she provided with the harassers’ names so that she could file a criminal complaint.
On the contrary, she claims that one guard mocked her, and one guard “patted her down” as she left work — sexually inappropriate and not done to other employees, she alleges.
For its part, the company issued a statement that it “abhors unlawful discrimination and harassment and has policies which prohibit such conduct in the workplace. The Company takes these matters very seriously and is currently investigating the allegations made in the complaint.”