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You probably know that as an employer, you can be held liable if one of your employees harasses another. But are you responsible if the person doing the harassing in your workplace is not an employee? Yes, according to the Equal Employment Opportunity Commission (EEOC).
"The EEOC [says] an employer may be responsible for harassment acts of nonemployees where the employer, through its agents or supervisory employees, knows or should know about the conduct and fails to take action," says Jim T. Priest, an employment law attorney and director of Oklahoma City law firm McKinney, Stringer & Webster.
Although the EEOC's focus has been on sexual harassment, Priest believes the position would also apply to harassment based on other issues. "I think we'll see courts and the EEOC very clearly saying you can be liable for any kind of protected-class harassment by a nonemployee, as long as it fits the mold the EEOC has set forth," Priest says.
Typically, nonemployee harassment comes from customers, and occasionally, from vendors. When the harasser is a customer, your goal is to stop the harassing without losing business. Priest advises being diplomatic and mentioning the specific conduct so the person knows what must be changed. "Don't be concerned with short-term profits at the expense of long-term liabilities," says Priest, adding that a customer who is creating a hostile work environment can end up costing you more in the long run.
If the harasser is a vendor, Priest recommends talking to the offender once. If the behavior doesn't change, alert the company's management.
Be sure all your employees know that harassment is against the law and that they have a right to a harassment-free workplace. They also need to know how to lodge a complaint. "You have to be vigilant and proactive in your approach to this issue," says Priest. "Prompt, corrective action is the key. Once you know about something, don't write it off, thinking `I'm sure he or she didn't mean anything by it.' " Use that kind of laissez-faire attitude, and you could end up in court.
Finally, when a complaint has been made and you've taken steps to resolve it, document your actions. You may also want to ask the victim to sign a statement acknowledging what you've done and stating that the problem has been corrected. If you're uncomfortable with such documentation, Priest says, "Go back to the employee and communicate orally to be sure she or he is comfortable with what has taken place."
McKinney, Stringer & Webster, 101 N. Broadway, #800, Oklahoma City, OK 73102, (405) 239-6444.