The responsibility of protecting employees from sexual harassment extends all the way to the company’s customers.
Seems to be a lot of this sort of thing going around lately. Just a couple of weeks ago, we wrote about the case of the Fred Meyer grocery store chain, which settled a lawsuit by agreeing to pay $487,500 to seven employees at its Oak Grove, OR store who had complained they had been sexually harassed virtually every day for several years — by a customer.
The most recent case involves the Dal-Tile Corp, a North Carolina concern, which manufactures, distributes, and markets ceramic tile and natural stone products.
Lori Freeman worked as a customer service rep at Dal-Tile. On a daily basis, she had to deal with a salesman from an affiliated company involved in bath and kitchen remodeling.
That rep’s name was Timothy Koester, and by the description of his actions in the recent appeals court ruling, he was … a handful. To say the least.
A quick rundown of some of Koester’s actions, as described by Freeman:
- He referred to some Dal-Tile customers as “black bitches.”
- He showed Freeman a photograph of a naked woman on his cell phone and remarked: “[T]his is what I left in my bed to come here today.”
- On a different occasion, Freeman overheard Koester talking with one of her co-workers, Jodi Scott, about photographs of Scott’s daughters that were displayed in Scott’s office. According to Freeman, Koester told Scott: “I’m going to hook up with one your daughters,” or “I’m going to turn one of your daughters out.”
- In another incident, Koester was using Freeman’s office phone, and she was standing there waiting for him to finish his conversation. Before Koester hung up the phone, he held it to his buttocks and passed gas on it. Freeman immediately began crying and had to leave the room to calm down.
- Koester called Freeman about covering a customer appointment for him because he had been partying the night before. Koester indicated that he could not come into the office, saying: “I’m just too f***ed up, don’t take offense, but I’m as f***ed up as a n****r’s checkbook.” Freeman immediately began crying and had to leave the room to calm down.
During this time — which spanned about three years — Freeman frequently complained to her immediate supervisor and Koester’s employer. Her supervisor simply agreed that Koester was a “pig”; his employer laughed and said, “[Y]ou got to admit that’s kind of funny, just do what I do and hit him because he’s an asshole.”
HR finally steps in
Finally, and only after Freeman made a direct complaint to HR, Koester was officially banned from Dal-Tile. That ban, however, was subsequently lifted on the condition that he have no contact with Freeman.
But the prospect of having to deal with Koester again caused Freeman to suffer anxiety and depression, Freeman testified. She went out on a two-month leave of absence.
She returned to work for a month, and then resigned.
Freeman sued, alleging sexual and racial harassment. A district court dismissed the case, saying Freeman hadn’t proven the harassment was “objectively severe on pervasive.”
But the appeals court disagreed. Here’s employment law attorney Katie Goetzl, writing on the Little Mendelson blog, summing up the appeals court decision:
First, reciting the frequent abusive behavior that occurred over the three-year period, the appeals court ruled that a reasonable jury could find that the sex-based harassment and the race-based harassment were objectively severe or pervasive.
Second, the appeals court held that an employer is liable for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt, remedial action reasonably calculated to stop the harassment. In this case, the employee’s direct supervisor was aware of the harassment because she witnessed some of the incidents and was notified of other incidents by the employee. Moreover, the direct supervisor knew that the harassment was ongoing and took no action.
The appeals court also found that when the employer did respond to the complaint of harassment, the response was neither prompt nor adequate. The employer took no action until the employee complained directly to the human resources department after enduring three years of harassment and then allowed the harasser to continue coming to the facility.
So what steps should the employer have taken: Here’s Goetzl’s advice (which won’t come as much of a shock to veteran HR pros):
- Review harassment policies to ensure that offensive conduct by third parties such as customers and vendors is prohibited and that multiple avenues to complain are made available to employees.
- Train supervisors to respond appropriately to harassment complaints by either investigating or notifying the human resources department.
- Ensure direct supervisors are vigilant about policing for harassment among their subordinates, even if no one makes a complaint.
- Take complaints of harassment by a third party as seriously as complaints of harassment by a supervisor or a co-worker.
- When harassment is substantiated, document the remedial action(s) taken and follow up to confirm that the harassment has stopped.
The case is Freeman v. Dal-Tile Corp.