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Beware growing liability risk: harassment by customers

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in Discrimination and Harassment,Human Resources

Issue: Courts are cracking down on employers that tolerate customer harassment of foreign-born employees.

Risk: Supervisors sometimes are more lenient with harassment by customers than by employees. That's a big mistake.

Action: Spread the word to supervisors: They have an obligation to prevent harassment from vendors, customers and other nonemployees.

By now, you've probably hammered on your anti-harassment policies so much that employees could almost recite them by heart.

But if you ask 100 employees to describe an example of workplace harassment, how many would involve an outsider, say a customer or a vendor, in their story? Probably very few. That's because too many people think harassment is only an employee-on-employee thing.

The truth is, employers can also be held liable when a nonemployee harasses one of their employees. If your organization knew about the harassment (or should have known) but did nothing to stop it, you're wide open to liability.

Latest trend: More courts are finding employers liable for failing to halt negative behavior by customers toward employees with foreign accents.

Case in point: A Honduran-born woman worked as the postmaster at a rural Oregon post office. Certain customers hurled offensive remarks about her accent, plus she received death threats and her car was vandalized. She reported the harassment to two Postal Service managers, but she says they failed to respond.

She filed a federal Title VII lawsuit, alleging national origin and race discrimination. A federal appeals court sided with her, saying the Postal Service was liable for third-party harassment because it essentially condoned the conduct by refusing to investigate or remedy it. (Galdamez v. Potter, No. 03-35682, 9th Cir., 2005)

How to deal with harassing customers

While you may have known about the third-party liability risk in sexual harassment cases, this case confirms that employers have the same obligation in harassment cases involving national origin. The message: Handle complaints of customer harassment the same way you handle ?complaints of employee-on-employee harassment.

While you can't control or discipline your customers the same way you can with your employees, you must at a minimum investigate allegations of customer harassment and take reasonable steps to end the harassment.

What are "reasonable" steps when it comes to valuable customers? Here are two suggestions:

1. Treat all situations the same, regardless of the employee's position. In this case, the court said the woman's status as a manager didn't lessen the Postal Service's duty to address harassment aimed at her. The feeling that managers must, as part of their job, deal with harassing customers and fend for themselves won't fly.

Apply your anti-harassment policy and the actions equally to all employee groups: managers and nonmanagers alike.

2. Defending your employees must come first. That may be difficult for some supervisors, who feel forced to choose between an employee and the source of business income. But, as this case shows, you have a clear obligation to protect employees from any harassment, even if it isn't good for business.

If you have to confront a customer, do it promptly. Sometimes, simply bringing up the subject and notifying customers of your anti-harassment policy will be enough to end the problem. If that doesn't work, you may need to ban the customer from the premises, refuse his business or even transfer your employee to another location or position.

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