Third-Party Sexual Harassment

Third-Party Sexual Harassment

It is most common for sexual harassment in the workplace to stem from employer-employee interactions. However, sexual harassment, in an employment context, is not limited to sexual harassment between employees. Third-party sexual harassment may be caused by an "outsider" (e.g., customers, vendors, independent contractors, security guards, maintenance and repair personnel, and/or caterers).

According to The New York Times article, "The Tipping Equation," third-party sexual harassment is extremely prevalent in situations where employees rely on customer gratuities. The article explains the difficulties faced by tipped employees in reporting third-party sexual harassment because they depend on customer gratuities for a majority of their wages.

Third-Party Sexual Harassment

It is most common for sexual harassment in the workplace to stem from employer-employee interactions. However, sexual harassment, in an employment context, is not limited to sexual harassment between employees. Third-party sexual harassment may be caused by an "outsider" (e.g., customers, vendors, independent contractors, security guards, maintenance and repair personnel, and/or caterers).

According to The New York Times article, "The Tipping Equation," third-party sexual harassment is extremely prevalent in situations where employees rely on customer gratuities. The article explains the difficulties faced by tipped employees in reporting third-party sexual harassment because they depend on customer gratuities for a majority of their wages.

What Must An Employee Prove?

In third-party sexual harassment situations, the employee's claim must meet the requirements of a sexual harassment claim. To establish a prima facie case of sexual harassment an employee must demonstrate that the employee was subjected to unwanted harassment, that the harassment was based upon his or her sex, and that the harassment was sufficiently severe or pervasive that it created a hostile or abusive work environment.

Who Is Liable In Third-Party Sexual Harassment Claims?

The United States Equal Employment Opportunity Commission ("EEOC") has determined that third-party sexual harassment claims should be evaluated in the same way as claims for harassment caused by fellow employees and/or employers. If an employer is negligent in failing to prevent or remedy harassment by a third-party, the employer may be liable to the extent of the negligence.

According to the EEOC, in order for an employer to be liable, the employee must demonstrate that (1) the employer failed to provide a reasonable avenue for filing a complaint or (2) that it knew, or should have known about the harassment, yet failed to take the appropriate remedial action. An employer should immediately investigate an employee's complaint of third-party sexual harassment. If the employer determines that inappropriate conduct took place, the employer must act. If the employer is aware of the third-party sexual harassment and does not act, then the employer may be liable for third-party sexual harassment.

Can An Employee Be Terminated For Reporting Sexual Harassment?

An employer cannot retaliate against an employee if he/she comes forward with a sexual harassment claim against a third-party. An employer cannot demote an employee or subject the employee to other disciplinary action for reporting third-party sexual harassment.

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