Awareness of harassment is key to analysis of employer’s liability

by C. Thea Pitzen

An employee harassed by a client, customer, or other nonemployee in the workplace may have a claim against his or her employer under antidiscrimination laws, according to the Washington Court of Appeals.

The facts in LaRose v. King County involved a public defender who received 10–20 phone calls a day from a client making “disturbing sexual and offensive comments.” The attorney reported the behavior to her supervisor but was not taken off the case. Ultimately, the court permitted the attorney to withdraw from the representation, but the harassment continued. Among other things, the client called his former attorney more than 1,000 times over 10 months, jumped out at her in a parking garage, left lingerie on her car, hid in her backyard, and appeared at her bedroom window in the middle of the night. He was ultimately arrested, while the attorney was diagnosed with major depressive disorder, generalized anxiety, and PTSD. She was eventually terminated from her employment when she could no longer continue working as a public defender.

Considering an issue of first impression under Washington law, the court held that a nonemployee’s harassment of the plaintiff can be imputed to an employer when the employer “(a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” ABA Section of Litigation leaders note that this case is in line with the trend in federal law and emphasize the importance of training for employers and employees.

Case Is Consistent with Federal Law

“This case is illustrative of the way the courts are looking at federal law throughout the nation,” explains Darryl G. McCallum, Baltimore, MD, cochair of the Programming Subcommittee of the Section of Litigation’s Employment & Labor Relations Law Committee. In addition to cases from the U.S. Courts of Appeals for the Seventh, Ninth, and Eleventh Circuits cited in LaRose, McCallum notes that the Court of Appeals for the Fifth Circuit undertook the same sort of analysis this year in Gardner v. CLC of Pascagoula, L.L.C., explaining that nonemployees can be the source of actionable harassment. While the Third Circuit has not addressed the question, the U.S. District Court for the Eastern District of Pennsylvania similarly held that a nonemployee’s harassment of an employee can subject the employer to liability, observes Shira Forman, New York, NY, editorial board member of the Section’s Employment & Labor Relations Law Committee.

In addition, both McCallum and Forman note that current EEOC regulations specify that an employer “may be responsible for the acts of non-employees with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

Similar Cases Are Likely Around the Country

“Because we are in the midst of the #MeToo era, more people are aware of their rights with respect to working in a harassment free environment,” Forman observes. In the area of labor and employment law, “we are seeing many more complaints of harassment and hostile work environment,” she adds. She believes such cases are likely to continue and notes that many cases involve less extreme facts than LaRose.

Employer’s Awareness Is Key

“Many employers are not aware that their responsibility to ensure a harassment free environment for employees could extend beyond just the people they employ,” says Forman. The actions of customers, independent contractors, and even people the employer does not know of can form the basis for a claim of workplace harassment, she observes. In addition, “harassment can happen when you’re not at work,” for example, at off-site meetings or after work, Forman notes.

“Obviously, there is a limit” to an employer’s prospective liability, Forman explains. “Courts are going to look for awareness on the part of the employer,” she adds. In LaRose and similar cases, whether the employer knew or should have known of the harassment is key to the court’s analysis. If the employee in LaRose “had not come forward and complained, this might be a very different case,” opines Forman. But as an employer, if you knew or should have known the harassment was occurring, courts will “consider the harasser in your control, so to speak,” she says.

Training Is Paramount to Guard Against Liability

In this legal environment, training for both employers and employees is key. McCallum identifies three key responsibilities for employers. First, “have a written policy on harassment that specifically covers clients, contractors, customers, and other nonemployees,” he says. The policy should clearly prohibit both employee harassment of nonemployees and vice versa, he explains. The policy should also provide more than one way of reporting, he advises.

Second, employers should train employees on the policy periodically and have them sign off on such training, McCallum says. The content of the training should cover all types of harassment, whether by employees, clients, customers, or other nonemployees, he notes.

Finally, if there is a complaint, the employer must take “prompt and effective remedial action,” McCallum advises. “The type of workplace and environment will dictate what steps are going to be reasonable for the employer to take to end the harassment,” he explains.

“It is not a one size fits all solution, but something has to be done,” McCallum concludes. While it is a “good idea to take cues from the employee about what behavior is comfortable for them, it is always better for an employer to err on the side of taking protective action,” Forman cautions. Likewise, it is important to train employees about what is acceptable and when and how to come forward, notes Forman.

“This is a time where people are much more aware of their rights, so employers have to be much more aware of their obligations,” Forman concludes. Lawyers should advise employer clients that training for both management and employees is key to guarding against potential liability for harassment claims like these.

C. Thea Pitzen is an associate editor for Litigation News.

©2020 Reprinted with permission from the American Bar Association. All rights reserved.