18 NOVEMBER / DECEMBER 2023 Debra A. Mastrian Partner Amundsen Davis LLC DMastrian@ AmundsenDavisLaw. com Amundsen Davis LLC is a Diamond Associate Member of the Indiana Bankers Association. HUMAN RESOURCES Employers have an affirmative legal obligation under federal and state employment discrimination laws – including Title VII of the Civil Rights Act of 1964 – to prevent sexual harassment (and all forms of unlawful harassment) in their workplaces, and to promptly investigate any incident of sexual (or any other form of unlawful harassment) in their workplaces and correct the matter. This includes harassment by non-employees with whom the employee interacts in the course of employment. Whether it is a customer, vendor, contractor or other non-employee with whom their employees interact, federal and state law require employers to take prompt corrective action, otherwise they face liability. In September, the U.S. Equal Employment Opportunity Commission issued its long-awaited proposed “Enforcement Guidance on Harassment in the Workplace,” which was available for comment through November 1. Among other things, the EEOC emphasized that an employer is liable for a hostile work environment created by non-employees if the employer either unreasonably failed to prevent the harassment or failed to take reasonable corrective action in response to the harassment about which the employer knew or should have known. Earlier this year, the EEOC settled a claim with a grocery store over allegations that the store allowed a customer to sexually harass female employees. The female employees alleged that a male customer made sexual comments and groped them for years without the employer taking any action. One of the employees eventually notified local law enforcement. The customer was issued a no trespass notice in that matter, which the store manager signed, but then the store continued to allow the customer to enter. The employer entered into a $50,000 consent decree. Employee Harassment by Customers An important reminder to take prompt corrective action A few years prior, the EEOC took a matter to trial against a large warehouse merchandise company in which a former employee alleged that the company failed to appropriately address her complaints that a male customer was stalking her. The female employee worked in a position that required regular interface with the general public. She claimed that the customer repeatedly sexually harassed her over the course of a year by leering at her, requesting dates, asking intrusive personal questions (e.g., “Do you have a boyfriend?”) and trying to hug her. The employee complained to the manager. The manager spoke with the customer and told the customer to avoid or limit contact with the employee. The employee claimed that the behavior continued and that she complained to management again, but that the managers simply told her that they were keeping an eye on the customer. The employee eventually sought an order of protection after suspecting that the customer was filming her on his cell phone. The company finally banned the customer from the store but by that point the employee had taken leave due to anxiety over the situation. The hostile work environment claim went to trial and the jury awarded the employee $250,000 in compensatory damages. The employee’s attorneys successfully argued that the company failed to take adequate corrective measures such as promptly banning the customer from the store or telling the customer to shop at a different location. In 2019, a bank in Oregon was denied summary judgment on sex discrimination and retaliation claims by a former employee who claimed that the bank did not take adequate corrective action against a customer who stalked and harassed her. The harassment began with notes from the customer about the employee’s good looks and asking her to go on a date. Her manager
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