Suppose a nightclub waitress complains to her employer that male customers often grope her. Her employer ignores her reports, turning a blind eye to the customers’ actions. Can the waitress sue the employer for workplace harassment? A California Court of Appeal recently faced this issue and—in a controversial opinion that may not hold up—has decided that the employer wasn’t liable for harassment. We’ll point out what this case means for your workplace.
Client Assaults Employee
Diversified Paratransit Inc. (DPI) transports developmentally disabled people from their homes and care providers to day care centers and schools. Raquel Salazar was a bus driver at DPI’s Long Beach terminal. From the start, Salazar claimed, she felt uncomfortable around a particular male passenger. Salazar filed several written reports with DPI explaining this person’s misconduct on the bus, which included touching her and exposing himself. Before Salazar took over this route, six other male and female drivers had complained to DPI about this rider’s behavior. The final straw for Salazar was when the passenger sexually assaulted her on her parked bus, again exposing himself. Salazar called for help, and two drivers from other buses came to her aid. She submitted another written report to DPI outlining the incident and resigned two days later.
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Employer Sued For Harassment
Salazar then filed a harassment lawsuit against DPI, contending that California’s anti-bias law, the Fair Employment and Housing Act, permits a worker to sue an employer for sexual harassment committed by a client.
Court Says No Liability
But now a California appellate court has disagreed and thrown out Salazar’s case. According to the court, the Legislature almost 20 years ago rejected a measure to amend state law to make an employer liable for harassment by clients or customers. Therefore, said the court, it was clear that existing workplace harassment law didn’t include liability for harassment committed by customers—and the court didn’t have authority to broaden the law.
Proceed With Caution
Although the employer won, the issue of whether you can be liable for harassment of an employee by a client or customer is far from clear-cut, and this decision may be appealed to the state Supreme Court. In the meantime, another state court of appeal could rule differently on the same issue. What’s more, the federal Equal Employment Opportunity Commission and the federal Ninth Circuit Court of Appeal, which covers California, have made it clear that an employer can be on the hook under federal law for harassment of an employee by a third party.
Protect Your Employees
Thus, it’s important to take steps to keep your workplace harassment-free. Here are tips to help protect your employees and avoid liability:
- Review your complaint procedures. Your complaint-reporting process should encourage workers to feel comfortable raising complaints about inappropriate behavior—whether by a co-worker, manager, client or customer.
- Respond promptly to all complaints. Carefully investigate complaints and swiftly take any needed steps to prevent further harassment. If the customer or vendor doesn’t act to stop the problem, you may have to be prepared to sacrifice your business relationship—or face a harassment lawsuit.
- Make your policies known. It may not be possible to prevent harassment by a client in an unusual circumstance such as in this case. However, one way you can ordinarily act to avoid harassment by clients and customers is to distribute a brief policy statement outlining the ethical practices you expect to govern your relationship, including a statement specifically barring sexual, racial or other harassment.