There’s been a lot of talk recently about employers’ obligations to address sexual harassment in the workplace. What often comes as a surprise is that this obligation also applies to conduct perpetrated by individuals over which an employer has limited control, such as its clients. In fact, New York employers also can be held liable when the harasser is a third-party consultant, vendor, or contractor.
When it comes to client-harassers, employers often are stuck between a rock and a hard place. How do you address the conduct of a client whom you do not fully control? When a client-harasser is a lucrative business partner, can the employer justify terminating the relationship? Does removing an employee from a situation in which she’s being harassed by a high-paying client remedy the situation or punish the employee who might stand to suffer reduced compensation?
The Wall Street Journal recently gave attention to this topic in an article by Vanessa Fuhrmans and Julie Steinberg called Difficult Conversation: When the Harasser Is a Client. The Wall Street Journal reported that “Among more than 7,000 female sales professionals, 57% reported receiving unwanted sexual advances or otherwise being harassed by clients,” but only a quarter of them reported the harassment. Nonetheless, when the conduct is reported, the onus falls on a New York employer to establish that it appropriately protected its employees.
In New York, employers may be held liable for any sexually-harassing conduct that occurs in the workplace if the employer knew (or should have known) about it. As a result, then, employers simply can’t bury their heads in the sand to avoid liability. Instead, employers must take an active role in preventing the harassment, even by its clients. This should be done through written policies that are distributed to employees and by conducting employee trainings (both of which are mandatory in New York beginning this fall).
Employers also should encourage employees to make good-faith reports of concerning behaviors, including conduct perpetrated by clients and others in the workplace. Of course, employers will need to seriously consider and investigate those reports when they’re received.
If you’re an employer with questions about preventing sexual harassment in the workplace or looking for assistance in defending a claim, the attorneys at The Coppola Firm can help.