HR Management & Compliance

Does Your Harassment Training Include Harassment by Customers?

One court recently decided that an employer can be held liable for harassment from customers.

The court in this case concluded that “an employer is liable under Title VII [of the Civil Rights Act of 1964] for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed ‘to take prompt remedial action reasonably calculated to end the harassment.’”

What happened

In August 2006, “Phyllis,” an African-American woman, started working as a receptionist for Marble Point, Inc., a stone yard located in Raleigh, North Carolina.

In June 2008, Dal-Tile Corporation acquired Marble Point’s assets from the owner, who purchased an ownership interest in VoStone, Inc., a kitchen and bath remodeling center. A significant percentage of that company’s business involved working with Dal-Tile.

After the acquisition, Phyllis became a Dal-Tile employee, and “Isabelle” continued to be her supervisor. Phyllis later became a customer service representative.

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Phyllis interacted with “Lucas,” an independent sales representative for VoStone, daily while he was at Dal-Tile conducting business. About 2 weeks into her initial assignment, Phyllis overheard Lucas referencing a photograph of two former employees, asking Isabelle and another employee, “[H]ey, who are these two Black b****es[?]” Phyllis later asked Isabelle about Lucas, who used a condescending term to describe him and said she didn’t think he would use similar language again. Phyllis asked Lucas the next day not to use such language, saying it made her uncomfortable.

Lucas also made frequent comments about women he had been with the night before, at one point, showing Phyllis a photo of a naked woman on his cell phone. In the presence of Isabelle, Lucas also passed gas on Phyllis’s office phone after using it, causing Phyllis to cry and leave the room.

During a June 2009 phone call, Lucas asked Phyllis to cover a customer appointment for him because he was recovering from a night of partying, which he described with a series of expletives and racial epithets.

Phyllis reported Lucas’s comments to Isabelle, who “scoffed and shook her head” but apparently did nothing more about the incident. Phyllis also told a VoStone co-owner, who laughed and used a condescending term to describe Lucas.

Phyllis answered another call from Lucas on July 29, 2009. He put her on speaker phone, so she could say hello to his 6-year-old daughter. When the little girl asked who was on the line, Lucas replied, “[T]hat’s the Black b**** over at Marble Point.” Phyllis told him never to call her that again and reported the incident to Isabelle, who appeared disinterested.

Phyllis then reported Lucas’s remarks to a Dal-Tile human resource professional, who initially said Lucas would be permanently banned from the facility. The ban was later lifted, but he was prohibited from communicating with Phyllis and had to coordinate all on-site meetings through Isabelle.

Phyllis went on medical leave from early September 2009 to mid-November 2009 and was treated for depression and anxiety. Upon her return, she was informed that Lucas was now employed by a different kitchen and bath fabricator and would continue to contact Isabelle directly if he needed to do business with Dal-Tile.

Constantly worried that she would encounter Lucas at work, Phyllis resigned in December 2009. She sued her former employer on claims of racial and sexual hostile work environment, among other things. A district court granted Dal-Tile’s motion for summary judgment, and Phyllis appealed to the U.S. Court of Appeals for the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

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In tomorrow’s Advisor, we’ll hear what the court said, plus we’ll examine a ready-to-use library of complete training courses on more than 100 key HR topics.

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