Sexual Harassment by Customers, Clients, and Patrons

Sexual harassment is not limited to scenarios where both the perpetrator and the victim are both employed by the same entity. In some cases, the harasser can be a non-employee – such as a customer. Whether the employee/victim’s employer may be held liable depends on the circumstances.

The U.S. Equal Employment Opportunity Commission (EEOC) regulations provide (in pertinent part):

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the [EEOC] will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees. (29 C.F.R. § 1604.11(e).)

For example, in EEOC v. Sage Realty, 507 F. Supp. 599 (SDNY 1981), the Southern District of New York held that plaintiff, an office building lobby attendant, established sex discrimination under Title VII. Defendants required plaintiff to wear a “revealing and sexually provocative” outfit (referred to as the “Bicentennial uniform”) while working. While wearing the outfit, plaintiff “received a number of sexual propositions and endured lewd comments and gestures.” She complained, but defendants did nothing. Defendants fired her after she refused to wear the uniform. In finding defendants liable, the court held that defendants’ “requirement that Hasselman wear the Bicentennial uniform, when they knew that the wearing of this uniform on the job subjected her to sexual harassment, constituted sex discrimination.”

Also instructive is Kudatzky v. Galbreath, 96-cv-2693, 1997 WL 598586 (SDNY Sept. 23, 1997). There, the Southern District of New York denied the defendant’s motion for summary judgment on plaintiff’s hostile work environment claim. Plaintiff, a licensed real-estate salesperson, worked for Galbreath as an on-site building manager at a building owned by defendant FGH. Plaintiff alleged that she was subjected to sexual harassment by William Nikolis, an officer FGH. In denying defendants’ motion, the court reasoned:

[P]laintiff has alleged that she complained to [Galbreath’s senior managing director and president] on numerous occasions about Nikolis’ behavior to no avail. … [I]n terms of Galbreath’s control over Nikolis, Nikolis was the President of FGH and was Galbreath’s client; Galbreath, much like a casino owner or the employer of an independent contractor, could have deterred Nikolis and his alleged sexual harassment of plaintiff. Therefore, because I find that an employer can be liable for the sexual harassment by a non-employee and because I find that an issue of fact exists as to whether or not Galbreath is liable here, Galbreath’s motion for summary judgment on this ground must be denied.

Additional examples of sexual harassment by non-employees:

• Lawsuit against Urban Outfitters (where plaintiff alleged that defendant failed to protect plaintiff “despite being specifically aware that customers were sexually harassing” plaintiff and other female employees); motion to dismiss recently denied;
• Lawsuit against Johny Utah’s.

As another example, in 2010 the EEOC settled a lawsuit against an Arizona employer that knew about and tolerated sexual harassment of two female cashiers by its truck driver customers.

In sum, sexual harassment is not limited to the “traditional” scenario of harassment by an employer’s employees, and employers cannot turn a blind eye towards harassment of their employees, regardless of the source.