Employment law has been established to codify basic protections within the relationship between an employer and its employees. One of the most basic obligations that an employer has is to provide their employees with a safe working environment, and this includes protection from sexual harassment. Sexual harassment can be considered a type of workplace violence, and has traditionally been assumed to arise from a coworker or coworkers, superiors or subordinates.

A recent ruling, however, introduced another potential source of sexual harassment for which an employee must take responsibility. The United States Court of Appeals for the Fourth Circuit recently ruled that an employer is obligated to provide protection from offensive conduct against their employees from customers. In Freeman v. Dal-Tile Corp., a former employee was determined to have valid claims against her employers because they failed to respond to consistent offensive conduct by a representative of one of their customers.

Harassment, whether sexual or racial, is a type of discrimination, and is defined as unwelcome or offensive conduct that creates a hostile work environment. One of the requirements of defining a work environment as hostile is the reasonable assumption that the employer is aware of the situation and does not provide sufficient intervention. This failure on the part of an employer constitutes liability for the creation of the environment.

In the above-cited case, the receptionist for Dal-Tile Corporation was persistently targeted by the sales representative of one of the company’s customers. The sales rep subjected the employee to both sexual and racial slurs and epithets regularly during their daily interactions. The receptionist repeatedly complained to her supervisor regarding the issue, citing specific episodes. Though Dal-Tile Corporation did eventually take action, barring the offending sales representative from the premises or contact with their employee, it took three years for them to do so.

In their ruling, the court indicated that the action that was taken was too long in coming. Judge Dennis W. Shedd wrote, “Although the harassment eventually stopped after the communication ban was put into place, the harassment had continued unabated for three years prior to that … While a communication ban may have been an adequate response had it been put into place sooner, Dal-Tile’s failure was in not responding promptly to the harassment.” This decision marked the first time that the court has published an opinion that extended the standard of negligence to include third-party harassment under Title VII, though other federal circuits have previously ruled similarly.

If you are an employee who has been subjected to a hostile work environment that interferes with your ability to do your job, your employer is responsible for providing you with protection. Your first action should be to ask the person to stop and to notify your employer so that they can act on your behalf. If you feel that you need further assistance, the attorneys at Bochetto & Lentz can provide you with advice as to your rights and your employer’s liability.


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