Sexual harassment by a nonemployee confirmed by a Federal court

by Michael Haberman on February 13, 2019 · 0 comments


Firing someone who reports harassment is not the best course of action.

When I train about sexual harassment or discuss it in a class, one area I mention is that companies can be liable for harassment from a nonemployee. The example I give most often is a delivery person who “flirts” with the receptionist that is receiving the packages. That is not a difficult example to understand for most people, though some are at a loss about what to do about it. What if the situation involved a male truck driver as the harassed party? What if the harasser was another male? Would that change the dynamics at all?

First time case for the Third Circuit

According to attorney Brett Anders, of Jackson Lewis, the Third Circuit Court, the federal court in Pennsylvania, had never encountered such a case. The court, in hearing the case, decided it did not change the definition of a hostile environment under the law. The employee did what all employees should do. He reported the harassment to his manager. His manager said he had talked to the management of the company that employed the offending party and promised that the harassment would stop. The driver’s manager asked him to not mention it again.

The harassment did stop for about six months but then started anew. The driver reported the harassment again to his supervisor, who not only chose to ignore the complaints, actually discharged the employee, presumably because the employee had been told not to mention it again. As you might expect the employee was unhappy with this turn of events and filed a lawsuit. According to Anders, the employee claimed:

various causes of action, including: (1) sex discrimination and retaliation under Title VII; (2) discrimination on the basis of race, color, and national origin under Title VII; (3) sex discrimination under the Pennsylvania Human relations Act (PHRA); (4) retaliation under the PHRA; and (5) aiding and abetting under the PHRA. The defendants included BS Transportation, the third-party vendor, an employee/supervisor of the third-party, and the BS Transportation owner – all of whom filed motions to dismiss.

The court, in turn, did dismiss all but ” (1) hostile work environment against BS Transportation under Title VII and the PHRA; and (2) aiding and abetting against the owner of BS Transportation.”

The reasoning

In hostile environment claims numerous courts have decided that “if the employer knew or should have known” then they have a responsibility to correct the issue. The aiding and abetting claim was used to show that the company had not contacted the offending worker’s employer, thus bolstering the employee’s claim that immediate action had not taken place.

As Anders concludes, as should we all, employers must pay attention to any claim of harassment and take immediate remedial action to solve the problem. The lesson, in this case, was that you do not ignore harassment claims, even when they involve same-sex issues and employees of other companies.


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