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Liability for third-party harassment may be imputed to employers


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Marcus

By Logan Marcus

Third-party harassment
An African American female customer service representative for a ceramic tile and stone company interacted with a third-party sales representative for a kitchen and bath-remodeling center on a daily basis. During these interactions, the customer service representative routinely overheard the third-party sales representative making racial and sexually explicit comments to other female employees, including discussing his desire to perform inappropriate acts with another employee’s daughter.

The third-party sales representative would also show the customer service representative inappropriate pictures on his cell phone and call her racist names. After the third-party sales representatives ignored her repeated requests to stop using offensive language, the customer service representative reported the behavior to her supervisor as well as to the harasser’s employer. While the customer service representative’s supervisor recognized the behavior was despicable and called him a “pig”, the third-party sales representative’s employer simply laughed about his behavior. After three years of continual harassment and three years of the tile and stone company taking no action to ameliorate the situation, the customer service representative lodged a complaint with human resources.  Although the harasser was initially banned from the tile and stone company’s facility, he was later allowed to return as long as he did not communicate with the customer service representative.  Fearing further unpleasant interaction with the harasser, the customer service representative suffered anxiety and depression, forcing her to take a two-month medical leave of absence. After resigning less than a month after returning to work, the customer service representative sued her own employer for racial and sexual harassment.

Liability for third parties
The trial court held in favor of the tile and stone company, explaining the company could not be liable for harassing acts of a third party.  On appeal, the Fourth Circuit reversed the trial court’s opinion, finding the company could be liable for a hostile work environment created by a third party if the employer knew or should have known of the behavior and failed to take prompt action to remedy the situation.  The Fourth Circuit held the company’s response to the customer service representative’s complaints was neither prompt nor adequate enough to avoid liability for the third party’s harassment.



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