Question:

I manage a large store and we have a lot of good long-term customers. One of my employees recently told me that one of our regular customers asked him out on a date and has been pursuing him ever since he declined the invitation. The employee has asked for my help. I don’t want to alienate our good customer. What are my obligations?

Answer:

In 2003, the California legislature passed a law stating that employers can be held liable for sexual harassment, and other forms of harassment and discrimination, directed at employees by third parties. An employer who knows or should have known of sexual harassment, and who fails to take immediate and appropriate corrective action, may be legally liable for sexual harassment, even if the alleged harasser is not a co-worker. Examples of third party liability cases involve customers, vendors, suppliers, delivery personnel, and others who may interact with your employees.

Because you have notice that one of your employees may be the victim of sexual harassment, you have a duty to investigate the allegations and take prompt remedial action. Your investigation may begin by getting more information from your employee concerning the customer’s conduct. Next, although this person is a good customer, you should communicate to him or her that the conduct is unwelcome and must stop. Politely tell your customer to stop pursuing this employee, and assign another employee to assist this customer when he or she comes into the store. You should also inform the employee who made the complaint that you are taking action by talking to the customer and arranging for another salesperson to assist the customer. Encourage the complaining employee to report to you if any additional unwelcome advances are made, either during work hours or outside of work.

Although I understand that this law may put employers, such as yourself, in an awkward position, you cannot ignore this situation because it involves a good customer. Under the law, an employer’s “control or legal responsibility over the conduct of non-employees” will be considered in determining liability. However, the law is clear that the employer’s paramount responsibility is to provide a harassment free work environment for employees, even if the harassment is coming from third parties. For example, in a recent third party sexual harassment suit, an employee settled his case for $145,000. In this case, a customer sexually harassed and then physically assaulted an employee. When the employee defended himself by striking the customer, the employee was fired. The Department of Fair Employment and Housing determined that the employer failed to investigate the employee’s sexual harassment complaint, and failed to take steps to assure its workforce was protected from sexual harassment by store customers.

Because of the legal responsibility to protect employees from harassment and discrimination, you are required to investigate this complaint and take appropriate action.
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