Yes, your company may get nailed for a hostile work environment created by your customer


Just when you thought it was tough enough to keep your own workforce in line.

Mack the Knife (except without the murder).

The plaintiff in this case worked as a van driver — no, not that van driver — for a senior center for a little over six years.

To say those half-dozen years were filled with good times would be an overstatement. Indeed, they were crap. Several company clients and co-workers lodged complaints about the plaintiff. In support of its motion for summary judgment, the company identified ten of them. Unfortunately, however, the concept of “hire slow and fire fast” seems have been lost on these folks. But, who am I to judge? I leave that to the judge.

To boot, the “plaintiff became friends and fraternized with a non-employee male senior citizen Rochdale client, who I will refer to as Mack.” To be clear, that’s the court referring to this older gentleman as Mack. Why Mack? Why not? At least, it gives me an excuse to play this smooth jazz.

Well, anyway, work issues aside, it seems that things were going fairly well between the plaintiff and Mack. That is, until Mack complained to the company that the plaintiff failed to pick him up; whereupon, the plaintiff complained to the company that Mack was just upset because he likes her and talks about her body. Reminds me of Burgess Meredith in the Grumpy Old Men outtakes (NSFW-ish).

Actually, it may have been a lot worse:

At her deposition, plaintiff provided more details about Mack’s alleged inappropriate conduct. Specifically, plaintiff testified that Mack’s inappropriate conduct began “about a year and half prior” to her resignation and would occur nearly every day. The harassment took various forms, including touching plaintiff’s arm or leg while she was driving, telling plaintiff that he wanted her, revealing his genitals, placing an object in his groin area, and touching plaintiff’s breasts.

The plaintiff claimed that she reported Mack’s behavior several times to the company; however, the complaints were not taken seriously and nothing was done to address it.

Can an employer be responsible for a customer-created HWE?

Well, you read the lede, sure.

She testified that Mack tried to touch her inappropriately almost every day, made repeated sexual advances to her, and on two occasions he even showed her his penis while she was driving the van, but she was not able to identify a single witness to even one of these events….Taking all of the evidence in the most favorable light for plaintiff, there is a triable issue of fact as to whether a hostile work environment existed at Rochdale. Under the totality of the circumstances, there are disputed issues of fact about whether plaintiff was subjected to a hostile work environment. If a jury were to credit plaintiff’s allegations at their most extreme, it is possible it could find that Mack’s behavior was driven by her gender and her conditions of employment were negatively impacted by his behavior.

Hopefully, this isn’t breaking news to most of you. Either way…

Here are some employer tips.

  1. Education is key. Make sure that your employees know that they can (and should) complain when visitors and customers engage in behaviors that are not otherwise tolerated at work. Along those same lines, instruct your managers to take these complaints as seriously as they would if lodged against a co-worker or supervisor. Hopefully, that’s quite seriously.
  2. Take all complaints seriously. That one’s worth repeating because, apparently, the employer didn’t do that here.
  3. You can’t fire; but someone else can. I once worked a case where a company hired a contractor to do some site work. The contractor’s employee came to the company site and made some racial slurs. Company employees complained. Company then complained to contractor. Contractor was mortified. Contractor fired the employee. Problem solved. Alternatively, you can ban a foul-mouthed customer for returning. And, when they do return, that’s called trespassing.

Kinda like me and some Las Vegas casinos, except replace “foul-mouthed” with “card-counting.” Although, I do recall some cursing too.

“Doing What’s Right – Not Just What’s Legal”
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