Employers (most of them, anyway) understand that they must protect their employees from harassment by their co-workers or supervisors. A recent case, Freeman v. Dal-Tile Corp., provides a reminder that they must also protect their employees from harassment by outsiders.
The employer, Dal-Tile, did a significant amount of business with another company, VoStone. The VoStone sales representative (a white male) frequently visited the Dal-Tile offices and interacted regularly with Dal-Tile employees, including the plaintiff (a black female). The sales rep was, as one employee described him, a “pig,” who admittedly made racial and sexual comments to Dal-Tile employees on an almost daily basis. Over the course of three years, he used the word “b****” freely, often discussed his sexual encounters, showed pictures of naked women, frequently made lewd comments, discussed having sex with a co-worker’s daughter, made references to “black girls” and “black b****es” (once in connection with the plaintiff), used racial slang, passed gas on the plaintiff’s phone, and (perhaps the topper) told the plaintiff that he was “as f***ed up as a n*****’s checkbook.” (I’m not sure “pig” fully captures the full essence of his character).
Unsurprisingly, the plaintiff was offended by the sales rep’s conduct. She told him to stop, but he didn’t. She told her supervisor about it, who did nothing. She told Human Resources about it, and the company eventually prohibited the sales rep from communicating with the plaintiff. She ended up taking a leave of absence, however, for depression and anxiety resulting from her concerns about possible future interactions with the sales rep. She resigned soon after returning to work, and then brought suit for sexual and racial harassment, among other things.
The district court threw out the plaintiff’s claims, finding that the conduct was not sufficiently severe or pervasive to constitute illegal harassment (what?!!), and that, even if it were, the company was not liable because it could not have known about the conduct since the plaintiff’s statements to her supervisor were not “complaints” (what?!!), and even further that, even if the statements were “complaints,” the plaintiff should have complained to someone else if she was unsatisfied with her supervisor’s response (what?!!).
On appeal, however, the U.S. Court of Appeals for the 4th Circuit reversed the district court’s rulings on these points. The 4th Circuit found that there was certainly sufficient evidence for a jury to find that the conduct was severe and pervasive. It also stated that a “negligence” standard should apply to claims of third party harassment – meaning that the employer would be liable if it knew or should have known of the harassing conduct. In this instance, the 4th Circuit found that the plaintiff did in fact complain – not only to her supervisor, but also to HR. In addition, the supervisor was present for some of the conduct. Therefore, there was evidence about the employer’s knowledge sufficient to support the plaintiff’s harassment claims, and the 4th Circuit sent the case back for a jury trial.
So, employers should be careful to respond to an employee’s concerns about their treatment by third parties – customers, clients, visitors, vendors, and suppliers. It’s part of everyone’s job to deal with unpleasant people from time to time – but when that unpleasantness targets a protected personal characteristic (like race, sex, religion, pregnancy, etc.), an employer has the obligation to step in and protect its employee.