July 17, 2023

Beware Third-Party Harassers

An employer was sued in Vermont for “subjecting a class of Black employees to racial harassment and creating and maintaining a hostile work environment due to their race.” This was not harassment by coworkers, managers, or supervisors. Nope! The employer was a residential health care facility, and the alleged harassers were patients and residents.

I’ll skip the gory details and suffice it to say the residents’ race-based comments and conduct towards black employees were egregious and vile. Multiple employees reported the conduct multiple times and to multiple people. So, what was the employer’s defense?

The employer should not be legally liable for the conduct of its residents who were third party harassers and over whom the employer had no direct control.

The Court’s answer? “[I]t is well-established that employers may be held liable for harassment by third parties when that conduct creates a hostile work environment[,]” and the “employer knew or reasonably should have known about the harassment and failed to take reasonable remedial action… it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer…Ability to control the actor plays no role.”

On occasion I find employees do not report third-party harassment because they thought the employer could not do anything about it or it only “counted” if they were harassed by a coworker or supervisor.

Tips. Does your anti-harassment policy expressly reference conduct by third parties such as visitors, vendors, customers, clients, and/or contractors? Do you give practical and behavioral examples of third-party harassment in your related training programs? If not, you may want to talk to your company’s legal counsel and consider doing so.