Q. Can I sue my employer for sexual harassment by non-employees?
A. Yes – if the employer knew and negligently failed to take remedial steps to stop or prevent the sexual harassment.

A hostile work environment based upon sexual harassment.

Generally speaking, in order to prove sexual harassment based on a hostile work environment, a Plaintiff must establish that: (1) she is a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action.  The alleged conduct must create an environment which a reasonable person would find to be hostile or abusive. Id. When determining whether an environment is objectively hostile or abusive, Courts consider the frequency of the conduct, its severity, whether it is physically threatening, and the degree to which it interferes with an employee’s work performance.

When a company, once informed of allegations of sexual harassment, takes prompt remedial action to protect the claimant, the company may avoid Title VII liability. While what constitutes proper remedial action is determined on a case-by-case basis, such action must at least be sufficient to put an end to the harassment.

An employer “may also be responsible for the acts of nonemployees, 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 2011, EEOC v. Cromer Food Servs., 414 Fed. Appx, the Fourth Circuit, which provides the case law applicable to federal actions in Virginia, considered whether an  employer may be liable for the activities of non-employees in a claim for sexual harassment.   It stated “Other Circuits to address the issue have adopted a negligence standard, finding that an employer can be liable if it took no steps to protect its employees and if it had actual or constructive knowledge of the situation. See Dunn v. Washington County, 429 F.3d 689, 691 (7th Cir. 2005) (employers, which have an “arsenal” of tools at their disposal, can be liable for the acts of independent contractors if they fail to take corrective action); Galdamez v. Potter, 415 F. 3d 1015, 1022 (9th Cir. 2005) (employer can be liable for third parties if it ratifies their actions by failing to act); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003) (employer can be liable for acts of its customers if it knew or should have known of actions); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001) (adopting a negligence standard in this context). EEOC regulations are also to the point, providing that an employer “may also be responsible for the acts of nonemployees, 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.” 29 C.F.R. § 1604.11(e) (internal citations and quotations omitted). The analysis is very similar to the standard used by this Circuit in the context of harassment of co-workers. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (“The employer may be  liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.”) For the purposes of the instant litigation, and because both parties urge us to do so, we adopt a negligence standard commensurate with the above precedents. Thus CFS is liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it.”  EEOC v. Cromer Food Servs., 414 Fed. Appx. 602, 606-607 (4th Cir. S.C. 2011)

The Fifth Circuit came to a similar conclusion, pointing out that Title VII nowhere confers an obligation on employers to see to it that their employees are free of sexual harassment by non-employees outside the workplace.  On the other hand, some courts have acknowledged that “such a duty may obtain as to actions of non-employees in the workplace.” Whitaker v. Carney, 778 F.2d 216, 221 (5th Cir. 1985); see also 29 C.F.R. § 1604.11(e). An employer can be held liable under Title VII for harassing conduct when the employer ratifies or acquiesces in the conduct by not taking immediate corrective action when it knew or should have known of the conduct. Little v. Windermere Relocation, Inc., 301 F.3d. 958, 968 (9th Cir. 2002) (finding an employer could be liable for sexual harassment when an employee was raped by a client); see also Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001) (holding employer’s responsibility for sexual harassment by non-employee depended largely on employer’s response). 29 C.F.R. § 1604.11 (e) states that an employer may be liable for the acts of non-employees in the workplace if the employer knew or should have known of the non-employee’s conduct and failed to take immediate corrective action.

In order to pursue such a claim, the claimant is required to file a complaint with the EEOC within 300 days of the last act of alleged sexual harassment.  See 42 U.S.C. § 2000e-5(e)(1).  While Courts will, in certain exceptional cases, utilize the theory of a “continuing violation” to allow Plaintiffs to sue for acts that occurred outside of the limitations period, the equitable exception only applies when the violation manifests itself over time rather than as a series of discrete acts.

Legal Services Available in Virginia 

This firm provides representation to individuals subjected to sexual harassment.  Our fees vary from case to case, but generally consist of our hourly fees of which a portion is deferred and made payable only from proceeds in return for a contingent bonus should the case be successfully concluded.

For assistance in righting the wrong of sexual harassment, contact the firm immediately!

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

Contact:

Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000
(804) 783-2105 fax