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When you have no control over harasser, treat it like co-worker harassment

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in Discrimination and Harassment,Human Resources

Employers have an obligation to protect their employees from sexual harassment from supervisors and co-workers—and also from customers or other outsiders. According to a recent 2nd Circuit Court of Appeals ruling, when the alleged harassment comes from customers and others over whom the employer has limited control, the rules regarding co-worker harassment apply.

Recent case: Lauren, who is white, worked for one school year as team manager of the Hofstra University football team. She was a graduate student at the university and was paid $1,000 for her team manager position.

Early on, she began complaining that the football players weren’t exactly polite young men. For example, she found a Facebook page that featured comments about Lauren and her boyfriend. She asked her boss to do something about the page.

Later, while Lauren was riding a bus with the team, the head coach allowed the players to watch a movie. She quickly became upset because the R-rated movie included numerous sex scenes. Many of the players laughed during the sex scenes, and one told Lauren that, like a white character in the movie, all white women want to have sex with black men.

Lauren started crying and ran to the front of the bus to complain to the head coach. He immediately stopped the movie and told the team to sit down and behave. He also sat with Lauren for the rest of the trip.

Lauren reported the bus incident to the university’s public safety department. Meanwhile, the team member who made the comment was suspended. The rest of the team also had to participate in sexual harassment training.

Lauren sued, alleging she had endured a sexually hostile work environment.

The case made its way to the 2nd Circuit Court of Appeals. That court concluded that the liability standard that should apply was that of co-worker harassment. It ruled that in this case, the university had met its obligation. The coach had addressed the problems Lauren reported. The university suspended one of the team members responsible for the most outrageous conduct. Plus, the entire team underwent sexual harassment training. (Summa v. Hofstra University, et al., No. 11-1743, 2nd Cir., 2013)

Final note: If you don’t have policies in place on how to handle customer or other outsider harassment, now is the time to address it. Thanks to this decision, you now know that the co-worker rules apply. You can therefore simply revise your policy to include customers and other outsiders. You will be liable only if you don’t have a way for employees to report harassment or don’t act on those reports in a way that is designed to prevent future harassment or stop current harassment.

Make sure your supervisors and managers understand that they need to take all sexual harassment reports seriously, even if the alleged harassment is coming from the outside. Revise your training program to include handling harassment by customers and other outsiders. And make sure employees understand that you won’t allow sexual harassment from any source.

Make reporting harassment easy and fix the problem fast—even if it means losing a customer.

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