Harassment by third parties can create exposure

BOSTON A recent decision by the 4th U.S. Circuit Court of Appeals, Freeman v. Dal-Tile Corp., serves as a reminder that employers can potentially be held liable not only for sexual or other harassment perpetrated by their own employees, but also for harassment carried out by third parties, such as employees of customers, vendors or other business associates.

In Freeman, the plaintiff claimed that she was subjected to a sexually and racially hostile work environment due to the actions of an employee of one of her employers distributors.

Reversing a grant of summary judgment for the employer, the 4th Circuit concluded that a jury could reasonably find that the company knew or should have known about the harassment and failed to respond appropriately.

Other courts, including the 1st Circuit and the Massachusetts Supreme Judicial Court, have similarly recognized third-party harassment claims. Thus, employers need to be vigilant for potential instances of third-party harassment and ensure that they respond promptly and appropriately to any such issues.

Factual background

The plaintiff, Lori Freeman, a black female, worked as a customer service representative for Dal-Tile Corp. As part of her duties, Freeman regularly interacted with Timothy Koester, a sales representative for one of Dal-Tiles distributors.

In the course of their interactions, Koester allegedly showed Freeman pictures of naked women on his cellphone and used racial and sexual epithets, including referring to black women as black b*****s and using the n word.

Freeman repeatedly discussed Koesters conduct with her supervisor, who also witnessed some of the offensive incidents. The supervisor expressed disapproval of Koesters actions but failed to take any concrete steps to address them.

After three years of enduring Koesters behavior, Freeman complained to Dal-Tiles HR department. In response, Dal-Tile initially banned Koester from its facility but later allowed him to return, on the condition that he not communicate with Freeman and coordinate his on-site meetings through Freemans supervisor.

After taking a two-month medical leave of absence for anxiety and depression, Freeman resigned from Dal-Tile. She later filed suit in U.S. District Court for the Eastern District of North Carolina, alleging, in part, that Dal-Tile had violated Title VII of the Civil Rights Act of 1964 by tolerating a racially and sexually hostile work environment created by Koesters actions.

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Harassment by third parties can create exposure