Employers Cannot Turn a Blind Eye to Harassment by Its Customers, Clients or Independent Contractors

By: Heather Kofron

In a matter of first impression, the Fourth Circuit recently found in EEOC v. Cromer Food Services, Inc., that the employer had actual or constructive knowledge of harassment of its employee by one of its biggest clients and that the employer failed to take corrective action.

In this case, the plaintiff, Homer Howard ("Howard"), was a vending machine delivery person for Cromer Food Services ("CFS"). He began experiencing sexual harassment by his employer's biggest client, Greenville Hospital ("Greenville"). Howard could not walk away from the harassment without abandoning his job duties. Howard reported the harassment to his managers and supervisors, who brushed off the behavior by stating that the harassment was a joke. None of the supervisors took any action to correct the behavior. The harassing behavior continued to escalate and Homer finally met with the chairman of CFS' Board of Directors to discuss the situation. Howard received the same inadequate response. The chairman told Howard that he was not responsible for the hospital but only responsible for CFS employees. Howard reported the harassment to Greenville's human resources, who never responded. When Howard reported the harassing conduct to the employees' supervisor, the conduct only stopped for two days. Howard asked for a different route or shift, but these requests were denied. When CFS finally offered Howard a new shift, he declined because the new shift affected his childcare responsibilities. Thereafter, CFS terminated Howard's employment.

The Fourth Circuit rejected CFS' claim that Howard failed to follow company policy by reporting the harassment directly to the company president or that Howard's reports of harassment were too vague. The lessons learned from this case are that employer's can bear liability for acts of non-employees and that the courts are not likely to dismiss an employee's claim for failing to strictly adhere to a company's harassment policy, particularly when the employee reported the harassment and the employer chose to ignore the behavior before taking any corrective action. 

Authored by attorneys, these articles are meant to bring awareness to these topics and are not intended to be used as legal advice.  For more information, contact Mike Sterling at 757-446-8626 or Bill Franczek at 757-446-8600.  Visit www .vanblk.com , for our library of Construction Law Tips.  Suggestions for a topic? E-mail bfranczek@vanblk.com.