Introduction

Sexual harassment in the workplace is a pervasive issue that undermines the safety, dignity, and equality of employees. While harassment by coworkers or supervisors is often discussed, a significant, underreported form of harassment comes from third parties such as customers, clients, vendors, patients, or other non-employees who interact with employees during their workday.

Third-party sexual harassment occurs when non-employees engage in unwelcome sexual conduct, creating a hostile work environment for the employee. This form of harassment is particularly prevalent in industries where employees frequently interact with the public, including retail, hospitality, healthcare, and service sectors. In these environments, employees may feel compelled to tolerate inappropriate behavior to maintain customer satisfaction or avoid conflicts with management.

This article explores the complexities of third-party sexual harassment, focusing on legal frameworks within New York. We will examine federal laws as applied by federal district courts in New York, state laws interpreted by the New York Court of Appeals and the Appellate Divisions of the Supreme Court of New York, and decisions by the New York State Division of Human Rights (NYSDHR) and the New York City Commission on Human Rights (NYCCHR). Through a detailed analysis and case studies, this article aims to clarify employers’ legal obligations and outline the remedies available to employees facing harassment from non-employees.

I. Understanding Third-Party Sexual Harassment

A. Definition and Nature of Sexual Harassment

1. General Definition

Sexual harassment is a form of sex discrimination that is prohibited under both federal and state laws. It includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.
• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such an individual.
• The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

Sexual harassment can take many forms, and its severity can vary depending on the circumstances. Under federal and New York state law, two types of sexual harassment are typically recognized: quid pro quo harassment and hostile work environment harassment.

2. Types of Sexual Harassment

• Quid Pro Quo Harassment: This occurs when employment decisions, such as hiring, firing, promotions, or other employment conditions, are based on an employee’s acceptance or rejection of unwelcome sexual advances. It often involves individuals in positions of authority who can impact an employee’s career or job security.
• Hostile Work Environment: A hostile work environment is created when unwelcome sexual conduct unreasonably interferes with an employee’s work performance or creates an intimidating, hostile, or offensive work atmosphere. This type of harassment does not require a direct employment decision to be tied to the behavior, but the conduct must be pervasive enough to affect the work environment.

3. Third-Party Sexual Harassment Defined

Third-party sexual harassment involves harassment by individuals who are not employees of the company but who interact with employees in the course of business operations. This includes harassment by customers, clients, vendors, patients, or other non-employees. Third-party harassment can take many forms, including inappropriate comments, gestures, touching, or propositions, and can significantly impact the employee’s well-being and ability to perform their job duties.

B. Key Characteristics of Third-Party Harassment

1. Non-Employee Harassers

• Customers and Clients: Individuals who purchase goods or services from the company may engage in harassing behavior, such as making sexually explicit remarks or touching employees inappropriately.
• Vendors and Contractors: Third-party individuals or companies providing goods or services to the employer may also engage in inappropriate conduct toward employees.
• Patients and Family Members: In healthcare settings, patients or their relatives may engage in harassment, particularly when employees are in vulnerable situations such as providing care.
• Other Non-Employees: This category includes any individual who is not an employee but interacts with employees as part of their work duties, such as delivery drivers, consultants, or independent contractors.

2. Increased Vulnerability of Employees

Employees in certain industries are particularly vulnerable to third-party harassment due to several factors, including the nature of their work, power imbalances, and societal norms.

• Customer Service Expectations: Employees in customer-facing roles, such as retail workers, restaurant staff, and healthcare professionals, may feel pressured to maintain professionalism and courtesy even when facing inappropriate behavior from customers or clients. In these industries, employees are often instructed to prioritize customer satisfaction, which can lead to a reluctance to confront or report harassment.
• Power Imbalances: When the customer or client holds economic power over the employee, such as in high-end retail or client-based services, customers may exploit this power imbalance to engage in inappropriate behavior, believing the employee must tolerate it to maintain their job.
• Isolation: Employees who work alone or in isolated settings, such as hotel housekeepers, home healthcare workers, or night-shift employees, may be more vulnerable to harassment because they lack immediate access to supervisors or colleagues who could intervene.
• Cultural Norms: In some cases, societal attitudes may minimize or excuse inappropriate behavior from customers or clients, making it more difficult for employees to report harassment or for employers to take it seriously. In particular, industries where the “customer is always right” mentality is prevalent may exacerbate the issue.

3. Impact on Employees

The effects of third-party harassment on employees can be profound, affecting their emotional well-being, physical health, job performance, and career prospects.

• Emotional Distress: Employees who experience harassment often suffer from anxiety, depression, and decreased self-esteem. The stress of dealing with ongoing harassment can take a significant toll on an employee’s mental health.
• Physical Symptoms: Chronic stress caused by harassment can lead to physical symptoms, including headaches, sleep disturbances, gastrointestinal issues, and other stress-related health problems.
• Job Performance: Employees subjected to harassment may experience decreased productivity, increased absenteeism, and a reluctance to engage fully in their work. Employees may sometimes avoid certain tasks or clients to reduce the likelihood of encountering the harasser.
• Career Advancement: Employees who experience harassment may avoid specific roles, industries, or promotions to escape hostile environments. In severe cases, employees may feel compelled to leave their jobs altogether, resulting in financial instability and loss of career opportunities.

II. Federal Laws Governing Third-Party Sexual Harassment

A. Title VII of the Civil Rights Act of 1964

1. Overview of Title VII

Title VII of the Civil Rights Act of 1964 is a landmark federal law prohibiting employment discrimination based on race, color, religion, sex, or national origin. It applies to employers with 15 or more employees, including federal, state, and local governments. Under Title VII, sexual harassment is recognized as a form of sex discrimination.

2. Third-Party Harassment Under Title VII

Under Title VII, employers can be held liable for sexual harassment by non-employees if they knew or should have known about the harassment and failed to take immediate and appropriate corrective action. Employers must prevent and address harassment, even if the harasser is not under the employer’s control.

• Employer Liability: Employers may be liable for third-party harassment if they knew or should have known about it and failed to take immediate and appropriate corrective action.
• Knowledge of Harassment: Employers are considered to know about harassment if:
  • An employee reports the harassment to a supervisor or HR.
  • The harassment is widespread or well-known within the company.
  • Management personnel directly witness the harassment.
• Reasonable Care Standard: Employers are expected to exercise reasonable care to prevent and promptly correct sexually harassing behavior, whether the harasser is an employee or a non-employee. This includes implementing anti-harassment policies, training, and responding effectively to complaints.

3. Relevant Case Law from New York Federal District Courts

• Pereira v. Schlage Electronics (1997): In Pereira v. Schlage Electronics, 902 F. Supp. 1095 (E.D.N.Y. 1995), an employee alleged sexual harassment by a non-employee vendor. The Court held that an employer could be liable under Title VII for harassment by a non-employee if the employer knew or should have known about the conduct and failed to take corrective action. This case is significant because it established that employers are responsible for addressing harassment by third parties if they know of it.

4. Relevant Case Law from Federal Circuit Courts

• Rodriguez-Hernandez v. Miranda-Velez (1st Cir. 1998): In this case, the plaintiff was sexually harassed by a high-level executive of the defendant’s largest customer. After complaining about the harassment, the plaintiff was fired at the behest of the harasser. The First Circuit held the defendant liable under Title VII for failing to address the harassment and retaliating against the plaintiff. This case emphasizes employer liability for third-party harassment, particularly when the employer acts to protect business interests over employee welfare.
• Lockard v. Pizza Hut, Inc. (10th Cir. 1998): In this case, the plaintiff, a waitress, was sexually harassed by customers while working at Pizza Hut. The Tenth Circuit held that the employer could be liable under Title VII for third-party harassment if the employer knew about the behavior and failed to take reasonable corrective action. The employer’s failure to protect the employee from the customers’ misconduct was found to create a hostile work environment.

5. EEOC Guidelines

The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, has issued guidelines addressing employer liability for third-party harassment. According to the EEOC, an employer may be responsible for the acts of non-employees concerning sexual harassment of employees in the workplace if the employer (or its agents or supervisory employees) knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

• Employer Policies: The EEOC recommends that employers include procedures in their anti-harassment policies for reporting harassment by non-employees.
• Employer Actions: Employers are encouraged to investigate all complaints of harassment, take appropriate disciplinary measures, and provide support to employees facing harassment.

B. Equal Protection Clause of the Fourteenth Amendment

1. Constitutional Protections

The Equal Protection Clause of the Fourteenth Amendment prohibits states from denying any person within their jurisdiction the equal protection of the laws. This constitutional provision has been interpreted to protect individuals from discrimination, including sexual harassment, by state actors. Public employees, such as government workers, can seek relief under the Equal Protection Clause if they face discrimination or harassment, including third-party harassment.

2. Application in New York Courts

In New York, public employees may bring claims under 42 U.S.C. § 1983 for violations of their constitutional rights, including the Equal Protection Clause. Section 1983 provides a civil remedy for individuals whose constitutional rights have been violated by someone acting under the color of state law.

• Annis v. County of Westchester (1997): In Annis v. County of Westchester, 136 F.3d 239 (2d Cir. 1998), the Second Circuit held that a public employee could bring a claim under § 1983 for sex discrimination and harassment, including hostile work environment, under the Equal Protection Clause. This case highlights the ability of public employees to seek constitutional remedies for workplace harassment, including harassment by third parties.

3. Requirements for a Claim

• State Action: To bring a claim under the Equal Protection Clause, the defendant must be a state actor, such as a government employer.
• Violation of Constitutional Rights: The plaintiff must demonstrate that their constitutional rights, including equal protection, were violated. In the context of third-party harassment, this could involve the employer’s failure to address known harassment by non-employees.
• Deliberate Indifference: The employer’s failure to address known harassment can constitute deliberate indifference, a legal standard that requires showing that the employer knew about the harassment and willfully ignored it.

C. Civil Rights Act of 1871 (42 U.S.C. § 1983)

1. Statutory Overview

The Civil Rights Act of 1871, commonly known as Section 1983, provides a civil cause of action for individuals whose constitutional rights have been violated by persons acting under the color of state law. Public employees can use § 1983 to sue public employers for failing to protect them from third-party harassment.

2. Application to Third-Party Harassment

• Public Employees: Public employees, such as teachers, police officers, and government workers, can file § 1983 claims if they face harassment and their employer fails to take corrective action.
• Deliberate Indifference Standard: Under § 1983, the employee must show that the employer was deliberately indifferent to known harassment by third parties. Deliberate indifference involves a conscious disregard for the harassment, meaning the employer knew of the behavior but failed to act.

3. Relevant Case Law

• Back v. Hastings on Hudson Union Free School District (2004): In Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004), the Second Circuit allowed a § 1983 claim for gender discrimination to proceed, indicating that public employers could be held liable for constitutional violations related to sex discrimination. This case underscores the importance of addressing harassment by employees and non-employees in public workplaces.

III. New York State Laws Governing Third-Party Sexual Harassment

A. New York State Human Rights Law (NYSHRL)

1. Overview of NYSHRL

The New York State Human Rights Law (NYSHRL), codified in New York Executive Law § 290 et seq., prohibits discrimination and harassment in employment based on protected characteristics, including sex. The NYSHRL applies to all employers in New York State, regardless of size, making it one of the most expansive anti-discrimination laws in the country.

2. Third-Party Harassment Under NYSHRL

Under NYSHRL, employers are liable for harassment by non-employees if they knew or should have known about the conduct and failed to take immediate and appropriate corrective action. Recent amendments to the law have strengthened employee protections by eliminating the requirement that harassment must be severe or pervasive to be actionable. Any harassment that rises above petty slights or trivial inconveniences is now considered actionable.

• Employer Liability: NYSHRL holds employers liable for third-party harassment if they knew or should have known about the harassment and did not take action.
• No Severe or Pervasive Requirement: Unlike federal law, NYSHRL does not require employees to prove that harassment was severe or pervasive. Any unwelcome conduct more than a petty slight is actionable under state law.

3. New York State Division of Human Rights (NYSDHR) Frequently Asked Questions 

Q7. I am a server in a restaurant and was harassed by a customer. Is there anything I can do?

A7. Yes, harassment by a third party, such as a customer, is covered under the New York State Human Rights Law (NYSHRL). If you experience harassment from a customer or any third party, you should immediately report the incident to your employer or manager. Under NYSHRL, employers must take immediate and appropriate corrective action once they know of harassment, including reassigning you away from the customer or asking the customer to leave.

If your employer fails to address the issue or if you are uncomfortable reporting the harassment internally, you have the right to file a complaint with the New York State Division of Human Rights (NYSDHR). The NYSDHR investigates claims of harassment and discrimination and can hold employers accountable for failing to protect employees from third-party harassment. Additionally, you can file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws.

IV. Local Laws Governing Third-Party Sexual Harassment (New York City)

A. New York City Human Rights Law (NYCHRL)

1. Overview of NYCHRL

The New York City Human Rights Law (NYCHRL), codified in Title 8 of the Administrative Code of the City of New York, is one of the most expansive anti-discrimination laws in the nation. It provides broader protections against discrimination and harassment than federal and state laws and applies to all employers operating within the five boroughs of New York City. The NYCHRL is intended to be construed liberally to accomplish its remedial purposes, meaning courts interpret it in favor of employees seeking redress.

2. Third-Party Harassment Under NYCHRL

Under the NYCHRL, employers are strictly liable for harassment by non-employees if they knew or should have known about the harassment and failed to take immediate and appropriate corrective action. Unlike federal law, the NYCHRL does not require employees to prove that the harassment was severe or pervasive; any form of unwanted conduct that is more than a petty slight or trivial inconvenience is actionable.

• Employer Liability: Employers can be held strictly liable for failing to address third-party harassment under the NYCHRL.
• No Severity or Pervasiveness Requirement: Under NYCHRL § 8-107, any unwanted conduct that creates an adverse work environment is actionable, regardless of its severity or frequency.

V. Common Law Causes of Action Related to Third-Party Sexual Harassment

A. Negligence Claims

Under New York common law, employees can file negligence claims against their employers if they believe they failed to take reasonable steps to protect them from known or foreseeable risks, including third-party harassment. Negligence claims may arise when the employer knew or should have known about the harassment but failed to act.

1. Failure to Provide a Safe Work Environment

Employers have a common law duty to provide a safe workplace for their employees. This duty protects employees from harassment by non-employees if the employer knew or should have known about the behavior.

• Duty of Care: Employers must take reasonable steps to protect employees from harm, including non-employee harassment.
• Breach of Duty: A breach occurs when an employer fails to take reasonable measures to prevent or address known harassment.
• Causation and Damages: The employee must show that the employer’s breach of duty caused harm, such as emotional distress or physical injury.

2. Negligent Hiring, Retention, and Supervision

Employers may also be liable for negligent hiring, retention, or supervision if they fail to exercise due care in selecting, retaining, or supervising third-party contractors, vendors, or clients.

• Negligent Hiring: Employers may be liable if they hire a third-party contractor or vendor with a known history of harassment.
• Negligent Retention: An employer may be liable for continuing to work with a third party after becoming aware of their harassing behavior.
• Negligent Supervision: Employers may be held liable for failing to monitor or control non-employee actions on the premises adequately.

3. Case Law Examples

• Shor v. Touch-N-Go Farms, Inc. (2011): In Shor v. Touch-N-Go Farms, Inc., 89 A.D.3d 830 (N.Y. App. Div. 2011), the court ruled that an employer could be liable if it was aware, or should have been aware, of an employee’s propensity for harmful conduct and failed to take action. Similarly, in Fuller v. Family Services of Westchester, Inc., 209 A.D.3d 983 (N.Y. App. Div. 2022), the court held that employers could face negligence claims if they failed to address an employee’s known risk of harm to others..
• D.T. v. Sports & Arts in Schools Foundation, Inc. (2021): In D.T. v. Sports & Arts in Schools Foundation, Inc., 193 A.D.3d 1097 (N.Y. App. Div. 2021), the court emphasized that the employer’s negligence is found in placing an employee in a position to harm others when proper supervision, hiring, or retention procedures were not followed. This precedent reflects the importance of an employer’s duty to take reasonable care in screening and supervising employees, especially in positions involving contact with vulnerable individuals.

B. Intentional Infliction of Emotional Distress (IIED)

Employees may also file claims for intentional infliction of emotional distress (IIED) if the harassment they experienced was so extreme and outrageous that it caused them significant emotional harm. IIED claims require a high threshold of proof, but in severe cases, they may be successful.

1. Elements of IIED

• Extreme and Outrageous Conduct: The behavior must be beyond all possible bounds of decency and intolerable in a civilized society.
• Intent or Recklessness: The defendant must have intended to cause emotional distress or acted with reckless disregard for the consequences of their actions.
• Causation: The conduct must have directly caused the emotional distress.
• Severe Emotional Distress: The distress must be severe and not merely trivial.

2. Application to Employers

Employers may be liable for IIED if their failure to address known harassment was egregious and caused the employee severe emotional distress. Sometimes, an employer’s indifference to the harassment may be considered extreme and outrageous.

• Employer’s Conduct: If an employer’s failure to act on known harassment is egregious enough, it may support an IIED claim.
• Challenges in Proving IIED: Courts in New York are cautious in applying IIED claims in the employment context, often requiring high misconduct to succeed.

3. Case Law Examples

• Fischer v. Maloney (1978): In Fischer v. Maloney, 43 N.Y.2d 553 (1978), the New York Court of Appeals recognized the tort of IIED but emphasized that it should be invoked only in extreme and outrageous circumstances. While IIED claims are challenging to prove, they remain an option for employees facing particularly egregious harassment cases.

VI. Real-World Examples of Third-Party Sexual Harassment

A. Retail Industry

Case Study: Harassment by Customers

Scenario:
A sales associate at a boutique in Manhattan experiences frequent sexual comments and unwelcome advances from a regular customer. Despite reporting the behavior to her supervisor, the employer takes no action, prioritizing the customer’s patronage over the employee’s well-being.

Legal Implications:

• Under Federal Law (Title VII of the Civil Rights Act of 1964):
  • Employer Liability: The employer’s failure to address known harassment by a customer may constitute a violation of Title VII. Employers are required to provide a workplace free from discrimination and harassment based on sex.
  • Hostile Work Environment: The customer’s persistent harassment, coupled with the employer’s inaction, may create a hostile work environment under federal law.
  • Duty to Act: If the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action, they can be held liable.
• Under New York State Law (NYSHRL) and New York City Law (NYCHRL):
  • Strict Liability: The employer’s inaction violates state and local laws, which impose strict liability on employers for failing to address non-employee harassment.
  • Lower Threshold: Under NYSHRL and NYCHRL, the harassment need not be severe or pervasive; any unwelcome conduct that rises above petty slights is actionable.

Possible Claims:

• Hostile Work Environment: Under Title VII, NYSHRL, and NYCHRL.
• Negligence: Failure to provide a safe workplace.
• Retaliation: If any adverse action is taken against the employee for reporting the harassment.

B. Hospitality Industry

Case Study: Harassment by Hotel Guests

Scenario:
A housekeeper at a hotel in New York City is subjected to sexual propositions and inappropriate touching by guests. Management dismisses her complaints, stating that accommodating guests is essential to the hotel’s business.

Legal Implications:

• Under Federal Law (Title VII):
  • Employer Liability: The hotel’s failure to address known guest harassment may violate Title VII.
  • Hostile Work Environment: The guest’s conduct and the employer’s inaction may create a hostile work environment.
  • Obligation to Act: Employers must take immediate and appropriate corrective action upon learning of non-employee harassment.
• Under NYSHRL and NYCHRL:
  • Employer Responsibility: The employer’s inaction violates state and local laws requiring prompt action against known harassment.
  • Constructive Discharge: If the working conditions become intolerable, leading the employee to resign, the employer may be liable for constructive discharge.

Possible Claims:

• Hostile Work Environment: Under Title VII, NYSHRL, and NYCHRL.
• Constructive Discharge: If the employee feels forced to resign due to the harassment.
• Negligence: Failure to ensure a safe working environment.

C. Healthcare Industry

Case Study: Harassment by Patients

Scenario:
A nurse in a New York hospital faces sexual harassment from a patient, including inappropriate touching and comments. The hospital administration fails to implement protective measures, citing patient care priorities as the reason for inaction.

Legal Implications:

• Under Federal Law (Title VII):
  • Employer Liability: The hospital may be liable under Title VII for failing to address known harassment by a patient.
  • Hostile Work Environment: The patient’s conduct and the employer’s failure to address it may create a hostile work environment.
  • Duty to Act: Employers in healthcare settings must balance patient care with the obligation to provide a safe workplace for their employees.
• Under NYSHRL:
  • Employer Responsibility: The hospital’s failure to take action violates state law, which requires employers to take immediate and appropriate corrective action.
  • No Severe or Pervasive Requirement: Unlike federal law, NYSHRL does not require severe or pervasive harassment; any form of harassment that is more than a petty slight is actionable.

Possible Claims:

• Hostile Work Environment: Under Title VII and NYSHRL.
• Negligence: Failure to provide a safe working environment.
• Violation of Workplace Safety Regulations: The hospital may also be liable under the Occupational Safety and Health Administration (OSHA) guidelines for failing to ensure a safe work environment.

VII. Employer Responsibility in Preventing and Addressing Third-Party Harassment

A. Legal Obligations

1. Under Federal Law

• Title VII Compliance: Employers must take immediate and appropriate corrective action when they know or should have known about harassment by non-employees. Employers are expected to investigate complaints promptly, take disciplinary action when necessary, and implement preventative measures to protect employees from future harassment.
• EEOC Guidelines: The EEOC recommends that employers include procedures for handling third-party harassment in their anti-harassment policies. Employers are encouraged to provide regular training for employees and supervisors on recognizing and reporting third-party harassment.

2. Under New York State Law

• NYSHRL Requirements: Under the NYSHRL, employers are liable for harassment by non-employees if they fail to take immediate and appropriate corrective action upon learning of the conduct. Employers must have written anti-harassment policies, provide annual sexual harassment prevention training, and maintain a procedure for reporting and investigating complaints.
• Policy Implementation: Employers are required to have comprehensive anti-harassment policies in place that address third-party harassment. These policies must be regularly communicated to employees and enforced throughout the organization.

3. Under New York City Law

• NYCHRL Compliance: The NYCHRL imposes strict liability on employers for failing to address third-party harassment. Employers are required to take all reasonable steps to prevent and correct harassment in the workplace.
• Annual Training: New York City employers must provide annual anti-sexual harassment training to all employees. This training should cover the definitions of sexual harassment, reporting procedures, and the employer’s obligations under the NYCHRL.

B. Developing Comprehensive Policies

Employers must implement comprehensive anti-harassment policies that specifically address third-party harassment. These policies should be clear, accessible, and consistently enforced throughout the organization.

1. Anti-Harassment Policies

• Clear Definitions: Anti-harassment policies should include clear definitions of harassment, with specific examples of third-party harassment relevant to the industry. For example, in the healthcare industry, the policy might provide examples of harassment by patients, while in retail, it may address harassment by customers.
• Reporting Procedures: The policy should outline how employees can report harassment, providing multiple channels for reporting (e.g., to a supervisor, HR, or anonymously). Employees should be encouraged to report harassment early, and employers should commit to investigating all complaints promptly.
• Non-Retaliation Assurance: The policy should emphasize that employees who report harassment will not face retaliation. Employers should communicate that retaliation for reporting harassment is strictly prohibited and will result in disciplinary action.

2. Employee Training

Regular training ensures employees understand their rights and responsibilities under the employer’s anti-harassment policies. Training should be interactive, engaging, and tailored to the workplace’s specific needs.

• Regular Training Sessions: Employers should provide mandatory training on recognizing and reporting harassment. This training should include examples of third-party harassment and emphasize the employer’s commitment to maintaining a safe work environment.
• Specific Scenarios: Training should include specific scenarios relevant to the industry. For example, in the hospitality industry, training might focus on dealing with inappropriate behavior from guests, while in healthcare, it might address harassment by patients or their families.

3. Management Training

Supervisors and managers play a critical role in preventing and addressing harassment. Employers should provide specialized training for managers on how to handle complaints, enforce policies, and respond to incidents of third-party harassment.

• Handling Complaints: Managers should be trained to respond appropriately to harassment complaints, including documenting complaints, conducting investigations, and implementing corrective measures.
• Legal Responsibilities: Managers should be educated on the employer’s legal obligations under federal, state, and local laws. They should understand the potential legal consequences of failing to address harassment and be equipped to take appropriate action.

C. Taking Corrective Action

Employers must take immediate and effective corrective action when they become aware of third-party harassment. This includes investigating complaints, implementing protective measures, and addressing the harasser’s behavior.

1. Investigating Complaints

• Promptness: Investigations should be initiated immediately upon receiving a complaint. Delays can exacerbate the problem and increase the employer’s liability.
• Thoroughness: Investigations should involve interviews with the complainant, witnesses, and the alleged harasser. All findings should be documented, and confidentiality should be maintained to the greatest possible extent.
• Confidentiality: While employers must investigate complaints thoroughly, they should also protect the privacy of all parties involved. Information should be shared on a need-to-know basis.

2. Implementing Solutions

• Protective Measures: Employers should immediately protect employees from further harassment. This might include adjusting work assignments, providing an escort, or implementing security measures.
• Addressing the Harasser: Employers should take appropriate disciplinary action against the harasser, including issuing warnings, banning the harasser from the premises, or terminating business relationships with third-party vendors or clients.
• Follow-Up: Employers should monitor the situation to ensure that the harassment has ceased and that the employees feel safe in their work environment. They should also check in with the employees periodically to ensure they are not experiencing any retaliation.

3. Preventing Retaliation

• Monitoring: Employers should monitor an employee’s work environment following a complaint to ensure that no retaliation occurs. If any signs of retaliation are detected, employers must address them immediately.
• Policy Enforcement: Anti-retaliation policies must be enforced consistently. Employers should clarify that retaliation for reporting harassment is unacceptable and will result in disciplinary action.

D. Creating a Supportive Work Environment

Employers can foster a supportive work environment by encouraging open communication, providing resources for employees, and promoting a culture of respect and inclusion.

1. Encouraging Open Communication

• Accessibility: Employers should ensure employees know how to report concerns and feel comfortable doing so. Reporting procedures should be easy to access and communicated to all employees.
• Support Systems: Employers should provide access to counseling or employee assistance programs (EAPs) to help employees cope with the emotional impact of harassment. Having a support network can help employees feel more confident in reporting issues.

2. Leadership Commitment

• Top-Down Approach: Leadership should model appropriate behavior and demonstrate a commitment to maintaining a harassment-free workplace. Leaders should take an active role in enforcing anti-harassment policies and promoting a culture of respect.
• Cultural Change: Employers should work to create a culture that values inclusivity and respect for all employees. This may involve implementing diversity and inclusion initiatives, hosting workshops, or creating employee resource groups to foster a supportive workplace environment.

VIII. Possible Legal Causes of Action for Employees

A. Hostile Work Environment Claims

1. Under Title VII

Employees facing third-party harassment can file hostile work environment claims under Title VII. Employees must first file a charge with the EEOC to bring a claim under Title VII.

• Filing with the EEOC: In New York, employees must file a charge with the EEOC within 300 days of the harassment.
• Elements to Prove:
  • The employee was subjected to unwelcome harassment.
  • The harassment was based on sex.
  • The harassment was severe or pervasive enough to create a hostile work environment.
  • There is a basis for employer liability (e.g., the employer knew or should have known about the harassment and failed to take corrective action).

2. Under NYSHRL and NYCHRL

New York state and city laws provide broader protections against third-party harassment than federal law. Employees can file claims under state and local laws with lower thresholds for proving harassment.

• Broader Protections: Under the NYSHRL and NYCHRL, employees do not need to prove that the harassment was severe or pervasive. Any unwelcome conduct that is more than a petty slight is actionable.
• Filing Deadlines:
  • NYSHRL: Employees have one year to file an administrative complaint with the NYSDHR and three years to file a civil lawsuit.
  • NYCHRL: Employees have one year to file an administrative complaint with the NYCCHR and three years to file a civil lawsuit.

B. Negligence Claims

1. Elements of Negligence

Employees may claim negligence against employers for failing to prevent or address third-party harassment. To succeed in a negligence claim, the employee must prove the following elements:

• Duty of Care: The employer must provide a safe work environment.
• Breach of Duty: The employer failed to take reasonable steps to prevent or address the harassment.
• Causation: The employer’s breach of duty caused harm to the employee.
• Damages: The employee suffered emotional distress, lost wages, or other damages due to the harassment.

2. Possible Damages

• Compensatory Damages: Employees may be entitled to compensation for emotional distress, medical expenses, and lost earnings.
• Punitive Damages: In cases where the employer’s conduct was particularly egregious, punitive damages may be awarded to punish the employer and deter future misconduct.

C. Intentional Infliction of Emotional Distress (IIED)

Employees may also file claims for intentional infliction of emotional distress (IIED) if the harassment they experienced was extreme and outrageous enough to cause severe emotional harm.

1. Proving IIED

To succeed in an IIED claim, the employee must prove the following:

• Extreme and Outrageous Conduct: The employer’s failure to act on known harassment must be beyond all possible bounds of decency.
• Intent or Recklessness: The employer acted with intent to cause emotional distress or with reckless disregard for the consequences.
• Causation: The conduct caused the employee significant emotional harm.
• Severe Emotional Distress: The distress experienced by the employee must be severe.

2. Challenges

IIED claims are challenging to prove in employment contexts, as courts typically require a high threshold of misconduct. However, in cases of severe third-party harassment, particularly when the employer is egregiously indifferent, IIED claims may be successful.

IX. What to Do If You Are Facing Third-Party Harassment

A. Document the Harassment

1. Record Keeping

Employees should keep detailed records of all incidents of harassment. This documentation can serve as crucial evidence in any legal proceedings.

• Detailed Notes: Employees should document dates, times, locations, descriptions of incidents, and the names of any witnesses.
• Evidence Preservation: Any physical evidence, such as emails, messages, or photographs, should be stored securely.

2. Witness Statements

If possible, employees should obtain written statements from coworkers who witnessed the harassment. These statements can help corroborate the employee’s account of events.

B. Report the Harassment

1. Follow Company Procedures

Employees should report the harassment to their employer using the company’s reporting procedures. Submitting a written complaint to create a paper trail is often helpful.

• Immediate Reporting: Employees should report the harassment to their supervisor or HR department immediately.
• Written Complaints: Written complaints help create a formal record of the harassment, which can be important if the employee decides to pursue legal action later.

2. External Reporting

If the employer fails to address the harassment, employees can report the issue to external agencies.

• Union Representatives: Unionized employees may report harassment to their union representative, who can advocate for the organization.
• Legal Counsel: Employees should consult an attorney to discuss their legal rights and options.

C. Seek Support

1. Emotional Support

Employees facing harassment may benefit from seeking emotional support from counseling services or support networks.

• Counseling Services: Many employers offer employee assistance programs (EAPs) that provide free or low-cost counseling services.
• Support Networks: Employees should seek emotional support from trusted friends, family members, or support groups.

2. Know Your Rights

Employees should educate themselves on the legal protections available under federal, state, and local laws. Knowing their rights can help employees take action and hold employers accountable.

D. Consider Legal Action

1. Filing a Charge

Employees can file a charge of discrimination or harassment with the EEOC, NYSDHR, or NYCCHR.

• EEOC: If employees wish to pursue a federal claim, they must file a charge with the EEOC within 300 days of the harassment.
• State and Local Agencies:
  • New York State Division of Human Rights: Employees must file a complaint within one year of the harassment.
  • New York City Commission on Human Rights: Employees must file a complaint within one year.

2. Consult an Attorney

An attorney can help employees navigate the legal process, assess the strength of their case, and advocate on their behalf.

• Legal Representation: An attorney can assist with filing claims, gathering evidence, and representing the employee in court.
• Evidence Evaluation: Attorneys can help employees evaluate their collected evidence and determine whether additional evidence is needed.

X. Practical Steps for Employers to Prevent Third-Party Harassment

A. Implementing Strong Policies

Employers must have strong anti-harassment policies to prevent and address third-party harassment.

1. Comprehensive Anti-Harassment Policy

The policy should clearly state that non-employee harassment is prohibited and provide definitions and examples relevant to the industry.

• Inclusion of Third-Party Harassment: The policy should explicitly address third-party harassment and outline the employer’s responsibility to take corrective action.
• Definitions and Examples: The policy should provide specific examples of third-party harassment relevant to the industry. For instance, healthcare might include examples of harassment by patients or their family members.

2. Accessible Reporting Procedures

Employers should provide multiple channels for employees to report harassment and ensure that reporting procedures are easy to access.

• Multiple Channels: Employees should be able to report harassment to their supervisor, HR department, or through an anonymous hotline.
• Anonymity Options: Employers should offer anonymous reporting options where possible to encourage employees who may be reluctant to come forward.

3. Non-Retaliation Policy

Employers must enforce a strict non-retaliation policy to protect employees who report harassment.

• Zero Tolerance: The policy should clearly state that retaliation for reporting harassment is prohibited and will result in disciplinary action.
• Enforcement: Employers must ensure that the organization consistently enforces the non-retaliation policy.

B. Training and Awareness

Employers must regularly train employees and managers to recognize and report harassment.

1. Regular Employee Training

Training should be mandatory for all employees and updated regularly to address current issues and trends in harassment prevention.

• Mandatory Sessions: Annual training should cover the definitions of harassment, reporting procedures, and the employer’s responsibilities under the law.
• Interactive Programs: Training should be interactive and engaging, using real-life examples to help employees recognize and respond to harassment.

2. Managerial Training

Managers should receive specialized training on handling complaints, enforcing policies, and preventing harassment.

• Handling Complaints: Managers should be trained on how to respond to harassment complaints, including how to document complaints and conduct investigations.
• Cultural Competence: Managers should be trained on cultural competence and sensitivity to address harassment in a diverse workplace.

C. Creating a Supportive Environment

Employers can create a supportive environment by encouraging reporting and providing employee resources.

1. Encouraging Reporting

Employers should foster a culture where employees feel comfortable reporting harassment without fear of retaliation.

• Open Door Policy: Employers should implement an open-door policy encouraging employees to report concerns without fear of reprisal.
• Positive Reinforcement: Employers should publicly recognize and support employees who come forward to report harassment.

2. Employee Engagement

Employers can engage employees by soliciting feedback and implementing programs that promote inclusivity.

• Feedback Mechanisms: Employers should regularly solicit employee feedback about the workplace climate and make adjustments based on the feedback received.
• Inclusion Initiatives: Employers should implement diversity and inclusion initiatives to promote a respectful and inclusive workplace.

D. Responding Effectively to Complaints

Employers must take immediate and appropriate action when they receive complaints of third-party harassment.

1. Immediate Action

Employers should take interim measures to protect the employee while the investigation is ongoing.

• Interim Measures: To protect employees, employers may need to adjust work assignments, provide escorts, or implement other temporary solutions.
• Avoiding Delay: Employers should respond promptly to complaints to prevent further harassment.

2. Thorough Investigations

Investigations should be neutral, thorough, and well-documented.

• Neutrality: Employers should use impartial investigators, possibly hiring external professionals to avoid conflicts of interest.
• Documentation: Employers should document all investigation steps, including witness interviews, findings, and corrective actions.

3. Appropriate Corrective Measures

Corrective measures should be tailored to the severity of the harassment and designed to prevent future incidents.

• Tailored Responses: Employers should take appropriate disciplinary action against the harasser, including banning them from the premises or terminating business relationships with third-party contractors.
• Communication: Employers should inform the employee of the outcome of the investigation and outline the steps taken to address the harassment.

4. Monitoring and Follow-Up

Employers should monitor the situation to ensure the harassment has ceased and no retaliation occurs.

• Continued Support: Employers should check in with the employee periodically to ensure that the harassment has stopped and that the employee feels safe.
• Policy Review: Employers should regularly review and update their anti-harassment policies to ensure they remain effective.

XI. Conclusion

Third-party sexual harassment is a significant issue that affects employees across various industries, particularly those in customer-facing roles such as retail, hospitality, and healthcare. Employers have a legal and ethical responsibility to protect their employees from harassment by non-employees, including customers, clients, vendors, and patients.

Federal laws such as Title VII, constitutional provisions like the Equal Protection Clause, and state and local laws such as the NYSHRL and NYCHRL provide robust protections for employees facing third-party harassment. Employers must take immediate and appropriate corrective action when they become aware of harassment or risk significant legal liability.

Employees who experience third-party harassment should document the incidents, report them to their employer, and seek legal guidance if necessary. Employers must take proactive steps to prevent and address harassment, including implementing comprehensive anti-harassment policies, providing regular training, and responding effectively to complaints.

By prioritizing employees’ safety and well-being, employers can create a positive workplace culture that promotes respect, inclusion, and productivity. This helps comply with legal requirements and contributes to a more supportive and successful business environment.

If you or someone you know is facing third-party sexual harassment, it is crucial to take action. Stay informed about your rights and the legal protections available to you. Follow us on LinkedIn, Facebook, and YouTube for updates on sexual harassment and other legal matters. Visit our website at The Sanders Firm, P.C., for more information and to sign up for our newsletter. Together, we can work towards creating safer and more equitable workplaces for everyone.