If you’ve ever worked at a restaurant or in sales, as an attorney, or in any other job that deals with customers and clients, you’ve likely heard this saying: The customer is always right. Often, satisfied customers equal better tips, higher commissions, promotions, bonuses, and raises. But the customer isn’t right when sexual harassment is involved. Here’s what you need to know about sexual harassment by customers and other third parties:
What does the law say about sexual harassment by customers?
If you work for a covered employer, Title VII of the Civil Rights Act prohibits sexual harassment by supervisors, other employees, and third parties. Third parties may include:
States and localities often have similar laws and regulations, such as the DC Human Rights Act.
What can I do about sexual harassment by a customer?
In the workplace, you have rights if a supervisor or coworker sexually harasses you. You have the right to file:
- An internal complaint with your employer;
- An administrative complaint with the EEOC or a similar state or local agency; and/or
- A lawsuit in court.
These same rights apply if a third party sexually harasses you at work. If a vendor or customer sexually harasses you at work, you should report the harassment to a supervisor. Depending on the circumstances, you may be able to file a complaint with the harasser’s employer. For example, if the harasser is a sales rep for the company that provides supplies to your office, you could file a complaint with the rep’s company. You may also want to file an administrative complaint and/or a lawsuit.
Is my employer responsible for harassment by customers?
Under Title VII and similar state and local laws, your employer may be legally responsible for third-party harassment if:
- The employer knew about the harassment;
- The employer failed to take prompt and effective action to stop the harassment; and
- You unreasonably failed to avoid the harassment.
This also applies if you were harassed by a coworker who is not a supervisor.
The employer knew about the harassment.
You must prove that you reported the harassment to your employer. If there were no witnesses, your supervisor could deny that you verbally complained or hand-delivered a written complaint. However, your copy of an email or text message you sent to your supervisor is evidence of when you complained and what you complained about. You can also meet this requirement if your employer had reason to know about the harassment. For example, your employer probably had reason to know that a customer was harassing you if other employees previously complained about harassment by the same customer.
The employer failed to promptly stop the harassment.
Your employer is legally responsible unless it took prompt and effective action. Your employer’s action was prompt if it was soon after becoming aware of the harassment. The action was effective if it completely stopped the harassment. Here are a few examples of action that may be effective:
- Terminating a contract with the vendor who harassed you, or asking the company to send a different representative;
- Reassigning a harassing client to your coworker (as long as you don’t lose compensation)
- Refusing to serve a harassing customer
An employer that takes prompt and effective action will probably not be responsible for anything that happened before the employer knew or had reason to know about the harassment.
You unreasonably failed to avoid harm.
Your employer isn’t responsible for sexual harassment that occurred because you didn’t take reasonable steps to avoid harm. For example, you may not have a claim if you welcomed or encouraged the harasser’s conduct or if you unreasonably failed to report the harassment. However, your employer may still be liable if you can prove that you didn’t report because you reasonably feared retaliation.
If you complain about sexual harassment by a customer, don’t accept your employer’s excuse that it doesn’t control the customer. Your employer has the power – and the responsibility – to control your work environment.
How can an attorney help me?
An experienced employment attorney can evaluate your case and determine whether your employer is liable for sexual harassment by a third party. An attorney can assess the strengths and weaknesses of your claims, help you collect evidence, and develop the strongest legal arguments for winning your case. Alan Lescht and Associates can help. Our attorneys represent federal government employees around the world, and state and local government and private sector employees in DC, Maryland, and northern Virginia. We handle administrative complaints with the EEOC, DCOHR, MCCR, and similar agencies, and we litigate sexual harassment cases in federal and state courts.