Company Can Be Sued For Harassment by Non-Employee

1.24.19

A United States District Court in Pennsylvania recently held that an employee could move forward with a sexual harassment lawsuit against his employer where the alleged harasser worked not for his employer, but for a customer. The Plaintiff, Carl Hewitt, worked for a trucking company and went to a customer's location to pick up cargo on a weekly basis. Plaintiff claimed that when he was at the customer's location, he was subjected to sexual advances, comments and hand gestures by an employee of the customer named Anthony. Plaintiff alleged that he "begged" Anthony to stop and that the customer's supervisors were aware of the harassing behavior but did nothing to stop it.

He also claimed that Anthony would "brush past [him] so as to make body contact", "parade around in his undergarments [sic]" and that he "grabbed Plaintiff by the buttocks with one hand and shoved him into the trailer of his freight car with the other hand, leaned into him and asked 'do you like that?'" The Plaintiff reported the assault to Anthony's supervisor, who said he would "make a report" and "take care of it."

Later that day, Plaintiff's boss (who was also the owner of the company) contacted Plaintiff and said he had been informed of his complaint against the customer's employees and that he would "handle the matter." Plaintiff's boss also asked him not to say any more about it.

Plaintiff alleged that neither the customer nor his employer investigated the complaints and the alleged harasser, Anthony, remained employed by the customer. While the harassment stopped for a short period of time, approximately a month later, Anthony allegedly began harassing Plaintiff again. Plaintiff claimed he reported the renewed harassment to Anthony's supervisor-but did not report it to his employer. Plaintiff then left his employment and claimed he was constructively discharged.

Plaintiff brought suit against his employer, the customer, both supervisors (his and Anthony's) and Anthony. All defendants brought motions to dismiss. The court granted the customer's motion to dismiss because there was no employment relationship between the customer and the plaintiff. However, the Court refused to dismiss the claims against the employer finding that "where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate action," the employer may be held liable. Since plaintiff had alleged that his employer knew about his complaint to the customer, the Plaintiff's claims against his employer can continue.

Comment: This case is a good reminder that employers must take action whenever they learn of alleged harassment-whether it occurs at their workplace or when the employees are interacting with customers (and other third parties) as part of their work. Employers must have clear policies regarding harassment and take harassment claims seriously, even if the alleged harassers are not their employees.

For more information, please contact Julie Kinkopf at jkinkopf@wglaw.com or 215.972.7914.

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