The Customer Isn’t Always Right: Employers Can Be Sued for Non-Employee Harassment

Though not as common as sexual harassment complaints involving supervisors or co-workers, complaints based on customer behavior are not unusual. The Equal Employment Opportunity Commission (EEOC) has long asserted that civil rights laws’ protection against harassment applies not only to actions from supervisors and co-workers, but also from non-employees such as customers, vendors, contractors and delivery persons. Such incidents are more typical within the restaurant, hospitality, and retail sectors where employees are required as part of customer service to demonstrate high levels of congeniality.

The U.S. District Court in Oregon has recently affirmed the EEOC’s finding that a class of female employees can proceed with their hostile environment claim based on the conduct of a customer. EEOC. v. Fred Meyer Stores Inc. (D. Or. 2013). According to the federal agency, the man who came to the store almost daily would sit by the employee time clock to pull women onto his lap and fondle them as they walked past to punch in. Rather than taking action on the employees’ complaints, the EEOC says managers excused the shopper’s offensive behavior and dismissed it as nothing more than “hearsay,” even though the women were giving firsthand accounts of their experiences. The managers told employees that their reports were not actionable unless witnessed by management or the loss-prevention department. The customer’s visits stopped only after women went to the police. The customer was convicted of third-degree sexual assault and required to register as a sex offender.

If the EEOC claims are found to be true, Fred Meyer’s actions would violate Title VII of the Civil Rights Act of 1964, prohibiting sexual harassment in the workplace. When employers receive sexual harassment complaints, they are required to investigate and to take correct active to stop the behavior from continuing. Federal law requires employers to shield workers from sexual harassment, and those protections extend to harassment from customers.