Employers Have A Duty to Protect Their Workers From Harassment by Customers
The Supreme Court has held an employer is liable pursuant to Title VII only for “its own” acts, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998), but it is well established that an employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker’s or third party’s sexual harassment or racial discrimination the employer knew or should have known about.
When it comes to harassment claims by workers based on the harassing conduct of customers or clients, rather than co-workers or management, inappropriate teasing and jokes, even if repeated ocassionally, are generally insufficient to make a case. However, as the Ninth Circuit pointed out in Fried v Wynn Las Vegas LLC (2021), ignoring or dissming an employee's complaints about a customer's sexual propositioning or subjecting a complaining employee to further harassment by the same customer will form a basis for a hostile work environment case against the employer.
Thus, for instance, in Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998), Lockard, a waitress, informed her manager that she did not like waiting on two particular customers. Id. at 1067. When the customers returned to the restaurant, the manager told Lockard to wait on them anyway, and one of the customers took the opportunity to tell Lockard that she smelled good and grabbed her hair. Lockard immediately reported that conduct to her manager and again said she did not want to wait on the pair. The manager directed: “You wait on them. You were hired to be a waitress. You waitress.” Lockard returned to the customers and one of them pulled her hair, grabbed her breast, and put his mouth on her breast.
When Lockard's case went to trial, a jury found that Lockard established a hostile work environment. The Tenth Circuit further reasoned that the employer was liable for creating a hostile work environment because the restaurant had notice of the customers’ harassing conduct, yet ordered Lockard to continue waiting on them. The court emphasized the manager “placed Ms. Lockard in an abusive and potentially dangerous situation, although he clearly had boththe means and the authority to avoid doing so. Rather than taking immediate and effective corrective action, which would have absolved that employer from liability, Lockard’s manager clearly conveyed that Lockard was expected to tolerate the customers’ abuse.
These types of cases serve as an important lesson to employers: if your employee complains to you about harassing conduct by a customer, do not dismiss that complaint and do not force your employee to continue working with that customer. Instead, address that situation as soon as possible to prevent further harassment. Usually, the easiest solution is ensuring that the worker no longer serves that customer, and he or she is removed from that situation altogether.
When it comes to harassment claims by workers based on the harassing conduct of customers or clients, rather than co-workers or management, inappropriate teasing and jokes, even if repeated ocassionally, are generally insufficient to make a case. However, as the Ninth Circuit pointed out in Fried v Wynn Las Vegas LLC (2021), ignoring or dissming an employee's complaints about a customer's sexual propositioning or subjecting a complaining employee to further harassment by the same customer will form a basis for a hostile work environment case against the employer.
Thus, for instance, in Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998), Lockard, a waitress, informed her manager that she did not like waiting on two particular customers. Id. at 1067. When the customers returned to the restaurant, the manager told Lockard to wait on them anyway, and one of the customers took the opportunity to tell Lockard that she smelled good and grabbed her hair. Lockard immediately reported that conduct to her manager and again said she did not want to wait on the pair. The manager directed: “You wait on them. You were hired to be a waitress. You waitress.” Lockard returned to the customers and one of them pulled her hair, grabbed her breast, and put his mouth on her breast.
When Lockard's case went to trial, a jury found that Lockard established a hostile work environment. The Tenth Circuit further reasoned that the employer was liable for creating a hostile work environment because the restaurant had notice of the customers’ harassing conduct, yet ordered Lockard to continue waiting on them. The court emphasized the manager “placed Ms. Lockard in an abusive and potentially dangerous situation, although he clearly had boththe means and the authority to avoid doing so. Rather than taking immediate and effective corrective action, which would have absolved that employer from liability, Lockard’s manager clearly conveyed that Lockard was expected to tolerate the customers’ abuse.
These types of cases serve as an important lesson to employers: if your employee complains to you about harassing conduct by a customer, do not dismiss that complaint and do not force your employee to continue working with that customer. Instead, address that situation as soon as possible to prevent further harassment. Usually, the easiest solution is ensuring that the worker no longer serves that customer, and he or she is removed from that situation altogether.