Did you know companies can be liable when a customer harasses their employees? In certain circumstances, they can.
Federal law generally prohibits employment discrimination on the basis of an employee’s race, gender, national origin, religion, age (over 40), disability, and military/veteran status. Included in that prohibition is that employee cannot be subjected to a hostile work environment based on any of those characteristics. And, federal courts have held that harassment of an employee by a customer can create an impermissible hostile work environment, subjecting the employer to liability for damages (including emotional injuries) that the harassment causes.
Generally, harassment rises to the level of a prohibited hostile work environment when it is: (1) unwelcome, (2) based on one or more of the prohibited characteristics listed above, and (3) severe or pervasive enough to alter the conditions of employment and create an abusive working environment. In addition, for an employer to be held liable, the employee must show that the employer knew or should have known about the harassment and failed to take reasonable steps to correct it.
Unwelcome. Harassment is unwelcome when the employee subjectively does not want it to occur.
Based on a Prohibited Characteristic. Federal law does not broadly or generally prohibit boorish behavior in the workplace. Rather, to show a hostile work environment, the employee must show that the harassment was directed at him or her because of a protected characteristic, such as race or sex. For example, a customer who directs foul language at everyone probably is not engaging in harassment based on a protected characteristic, whereas a customer who always refers to women using a vulgar term probably is.
Severe or Pervasive. Federal law does not provide a remedy for every instance of bad behavior, even bad behavior based on a protected characteristic. Rather, to constitute a hostile work environment, the behavior either must be truly egregious or it must pervade the workplace. For example, a customer using a racial epithet once probably will not, by itself, create a hostile work environment, but a customer coming in every day and referring to the receptionist using the n-word probably will.
Employer Liability. An employer can only be liable for customer harassment if the employer knew or should have known it was occurring and unreasonably failed to stop it. This means that an employee generally cannot sit idly by when harassed; rather, it is incumbent on the employee to report the harassment and give the employer a fair shot to resolve the situation. It also means that employers cannot turn a blind eye to harassment occurring under their noses. If they are aware of customer harassment, they are obliged to do what they reasonably can to stop it.
Lessons for Employers. It is important for employers to be aware that their customers can cost them a lot of money if those customers are permitted to harass their employees. Employers should ensure that their harassment policy expressly covers customer harassment, and, as uncomfortable as it may be, employers should diligently investigate complaints against customers and take action to stop customer harassment when it occurs. Few customers are worth the cost, expense, and reputational harm of a harassment lawsuit.
Lessons for Employees. Employees experiencing customer harassment should first utilize any harassment complaint procedures provided by their employer, or, if there are none, should complain to their supervisor and/or human resources. If they are unable to obtain relief internally, they should contact an employment lawyer or the Equal Employment Opportunity Commission to discuss their options.
Important Disclaimer: This article is for general informational purposes only and is not intended to provide guidance with respect to any particular situation. It discusses only certain United States federal laws, not all federal laws, and not the laws of any city, state, or any other country. It is not intended to provide legal advice, and it does not create a lawyer-client relationship with anyone, including the readers of the article. For legal advice on any other issues addressed in the article, please contact a lawyer of your choosing.