As I sit here on vacation cleaning out some of the older cases from my Google Drive, I came across this Fifth Circuit decision about which I meant to blog a while ago. It’s about a baccarat dealer who had to deal with a customer making sexually charged gestures, remarks about her appearance, and sexual propositions toward her.
No employee should have to deal with this type of behavior. But does the law recognize that customers can create a hostile work environment for one of your employees?
The short answer is yes.
Here’s the slightly longer explanation.
To establish a hostile work environment claim, the plaintiff must demonstrate: (1) she is a member of a protected group; (2) she was the victim of uninvited sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) her employer knew or should have known of the harassment and failed to take prompt remedial action.
To affect a term, condition, or privilege of employment, sexual harassment must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Here, the customer made sexually charged comments in front of others at least two times a week for several weeks. That’s pervasive enough to support a hostile work environment claim.
But that doesn’t necessarily mean that the plaintiff will win her lawsuit. Remember, the plaintiff still must show that her employer knew or should have known of the harassment and failed to take prompt remedial action. As part of this step, the employee must show that she took advantage of the corrective opportunities provided by the employer.
The plaintiff offered evidence that the defendant trained her to report problems to her floor supervisors, who would then move any complaints up the chain of command. She claims she followed this prescribed procedure multiple times throughout the relevant three-month period, but her company never addressed them. Instead, her managers told her “ignore him” and “let it go,” with the additional response that “this comes with the business.”
The defendant’s position was that the employee didn’t follow the anti-harassment policy to the letter by filing a complaint with Human Resources or upper-level management until much later. Once this did take place, the defendant acted immediately to address the problem.
In an ideal world, employees read the employee handbook and follow it verbatim. However, the problem for the defendant is that the law does not require a “formal” complaint. Instead, once managers are on notice of the harassment, the employer must address the complained-of behavior. Since that did not happen here, the case will advance to trial.
So make sure that you managers know to take all complaints of harassment seriously, including those involving customers. The customer is always right, except when he creates a hostile work environment.