What Must an Employer Do When a Non-Employee Harasses an Employee?

You are the President of ABC Company and a customer makes an inappropriate comment to your female receptionist. The customer is a long-time client and the loss of the customer’s business would greatly impact ABC Company. However, the receptionist is truly offended by the comment and has complained to the human resources manager. As the employer, what are you legally obligated to do?

The short answer is that you may have just lost a valued customer. In the recent case of Turman v. Turning Point of Central California (Dec. 21, 2010) H032576, the Court held that an employer that learns of harassing behavior from a third party must take immediate and appropriate action to correct the situation. The plaintiff in Turman was a female resident monitor that worked at a halfway house for defendant Turning Point. The residents in the house were predominately males that were in the process of being transitioned into the workplace. The female plaintiff complained that the male residents were making inappropriate sexual gestures in front of her. The employer’s response was to advise the female employee to issue fewer disciplinary citations, which the employer felt were causing the residents to retaliate with the inappropriate behavior.

As held by the Court in Turman, the response of the employer was not the equivalent of “immediate and appropriate corrective action”. As a result, the employer was subject to liability even though the harassing behavior came from third parties.

The Turman case is a reminder to employers that they must address complaints of harassment and hostile work environment even when the harassment is perpetuated by third parties.

Under California law, any employer that regularly employs 50 or more employees, must provide two hours of training to each supervisory employee every two years. In addition to the training, employers should establish policies and practices for investigating any complaints of harassment which include:

1. Instructions as to who the complaint should be made to;
2. Forms for detailing the complaints;
3. Designated personnel for investigating the complaint;
4. Established procedures for investigation the complaint; and
5. Defined corrective action to be followed after completion of the investigation.

In summary, employers need to understand that any complaint regarding harassment, whether directed at another employee or a third party, must be dealt with by immediate and appropriate corrective action. Any questions about these issues should be directed to a labor and employment lawyer.