Is it sexual harassment if a visitor masturbates in the office?

So far, I love Justia.
Not only have they designed and set me up with The Employer Handbook,
but every week I get an email from them suggesting labor and employment
law stories that would make great blog posts.

Its storybook time, folks. Let’s read the juicy complaint together after the jump

In the September 11 edition, I came across a story about a female
librarian who recently filed a complaint in the Northern District of
Alabama. The librarian claims that she is surrounded by men surfing the Internet for porn who sometimes grope her and perform lewd acts in her
presence. So, she alleges sexual harassment and hostile work environment claims.

Sounds like we have a strong candidate for

Philip Miles‘s Lawffice Space case of the week. At the risk of stealing some thunder, I’m going to explore this further.

Let’s hit the highlights:

Para 4: Our plaintiff is a female citizen of the State of Alabama and she is at least nineteen years of age. I’m going to plead ignorance here. Hopefully, someone from Alabama can help me out. What is the significance of 19 years?
Para 7: The plaintiff filed a charge of discrimination with the EEOC within 180 days of the alleged acts of discrimination. In Pennsylvania and Delaware, the deadline in 300 days. In New Jersey, plaintiffs can bypass administrative agencies and head straight to court with a state law claim pursuant to the New Jersey Law Against Discrimination. Just a little FYI…

(Enough of the procedural mumbo-jumbo. Let’s get to the good stuff)

Para 14, 21: The library computers are used to view porn, sometimes in plain view of children. YUCK!
Para 15: “The images displayed on the computer terminals are of an explicit sexual nature depicting heterosexual intercourse, homosexual acts, pictures of male and female genitalia, and apparent child pornography.” [sarcasm] Lovely. [/sarcasm]
Para 17, 18: Plaintiff was exposed to sexual innuendo, touching and other conduct, including public masturbation.
Para 19, 20: Plaintiff contends she complained and the library did nothing.

I don’t profess to be an expert on Eleventh Circuit jurisprudence, but I’m guessing that — if true — the plaintiff has met the severe and pervasive element for a claim of sexual harassment.

But do you see anything missing here? I do. The complaint does not allege that any employee of the defendant subjected her to a hostile work environment. The allegations all appear to involve acts by perverted prurient purveyors of porn who patronize the library. Does that matter? (The patron part, not the over-the-top alliteration). Not if the employer has control over the library visitors, at least according to the EEOC:

For the unlawful harassing conduct of non-supervisory employees, or non-employees over whom the employer has control (e.g., independent contractors or customers on the premises), the employer will be liable if it knew or should have known about the conduct and failed to take prompt and appropriate corrective action. This means that an employer should have an anti-harassment policy and complaint procedure and should be vigilant enough to detect harassing conduct that it reasonably should know about even without a complaint. It should also create an environment in which employees feel free to raise concerns, and are confident that those concerns will be addressed. Victims of harassment, in turn, should make sure management knows about the harassing conduct.

The EEOC’s position is consistent with anti-harassment policies that I draft for my clients. Although the Third Circuit appears not to have addressed this issue, area courts concur with EEOC guidance. In 1996, the Eastern District of Pennsylvania in Sabo v. Lifequest, Inc. noted an “emerging trend among federal courts…to permit a cause of action under Title VII … against employers for the sexual harassment of employees by non-employees.” The District of Delaware acknowledged this trend too in Mongelli v. Red Clay Consol. Sch. Dist. Bd. of Ed.

So, employers, three quick tips for you:

Make sure that you have an anti-harassment policy.
Make sure that anti-harassment policy covers harassment by visitors and other non-employees over whom the employer may exercise control.
Take all employee claims of unlawful harassment seriously, even if they involve non-employees — especially those who masturbate in your office.

Otherwise, you may find yourself in a sticky bad situation.

Other useful resources:

Photo credit: Raysonho