Liability Is Based on Bank’s Failure to Protect Employee, Not on Customer’s Conduct
Litigation Section leaders agree with the Ninth Circuit’s holding in Christian that employers should be held liable for their failure to address harassment in the workplace. “When an employer has knowledge that one of its employees has been subjected to inappropriate conduct in the workplace, it is reasonable to expect the employer to take measures to effectively address the situation, or risk being found liable for failing to do so,” asserts Jerry Cutler, New York, NY, cochair of the Section’s Employment & Labor Relations Committee.
“The issue in Christian was not about whether the bank was liable to its employee for the actions of the customer, but whether the bank was liable based upon how the bank responded (or, from the perspective of the employee, failed to respond) to the actions of the customer,” observes Christopher S. Hennessy, Chicago, IL, cochair of the Section’s Employment & Labor Relations Committee. He specifies that the “focus is on the actions and conduct of the employer as it relates to its employees,” and the source of the harassment that adversely impacted the employee’s rights in her workplace based on her gender “did not matter.”
Important Lessons for Employers
“Employers should immediately begin an investigation upon learning of the alleged harassing conduct,” advises Cutler. “This includes meeting with the employee, interviewing witnesses, and gathering any relevant evidence. The investigation should also include a written investigative report that contains factual findings and conclusions pertaining to the alleged conduct,” he explains. “Where the investigation substantiates the allegations, employers should take prompt and effective measures to ensure that the complained-of conduct is not repeated,” he concludes.
“The emphasis to the employer should be the experiences of its employees and how those experiences can be adversely impacted by the actions of the employer, by coworkers, and by third parties like customers, vendors, or others in the workplace,” adds Hennessy. “The employer should view the harassment from the perspective of the employee irrespective of the source,” he remarks.
“These are topics that can be addressed in workplace training,” suggests Hennessy. Some jurisdictions specifically require employers to provide sexual harassment training, including how to address harassing conduct by third parties such as customers. “For example, effective January 1, 2020, Illinois passed the Workplace Transparency Act that requires, among other things, to provide sexual harassment training” and “the model training program issued by the Illinois Department of Human Rights specifically addresses ‘Customer/Patrons and Third Parties as Perpetuators of Sexual Harassment,’” illustrates Hennessy.
Along the same vein, “employers should distribute a written policy to employees explaining that harassment is prohibited, outlining the mechanism for reporting instances of such conduct, describing the investigative process, and ensuring that the employer will take prompt and effective action when it is determined that such conduct has occurred,” advises Cutler.