Yesterday, our front office receptionist reported to me that one of our vendors—the person who stocks the vending machines in our break room—made several sexually charged comments to her, came very close to her face, and touched her hair. Clearly, this behavior violates our nonprofit’s sexual harassment policy. However, our policy doesn’t address this situation directly since the vendor is not one of our employees. What should we do, as well as what can we do, to protect our employee from this conduct?
The laws to prevent and remedy sexual harassment in the workplace are very broad in their definition and scope to make it clear that employees and others in the workplace have a right to be free from such conduct, have an effective complaint procedure, and be assured that such behavior will be effectively addressed. Employees are protected not only from harassment committed by co-employees and supervisors, but also from harassment perpetrated by non-employees who may enter the work environment.
The law refers to this as “Third Party Harassment” and the employer has an obligation to remedy conduct committed by an “outsider” to the same extent possible and practicable as if the harassment was committed by an employee, or an “insider.” So, aside from the moral obligation you clearly feel, you are also liable legally if you fail to address this.
Initially, you should revise your existing sexual harassment policy to declare that harassment committed by “outsiders” is prohibited and to make it very clear and unambiguous that employees victimized by such conduct must report this as soon as possible. Employees need to know that protection from harassment applies to this kind of situation and that once the report is made, effective action will be taken to protect them from the offender.
As you point out, how you provide this protection is often a difficult proposition since the offender is not under your direct control. Your first step is to make a complete record of what took place by discussing the events with the reporting employee and with any witnesses that may have observed the harassing conduct.
In terms of dealing with the offending “outsider” once the report is made, there are a number of options to implement an effective remedy, assuming you find validity to the claim. The most direct option is to make an immediate call to the vendor’s employer to report the situation, let them know you found the claim to be valid, and request that that individual no longer visit your workplace. If that request is not honored, you could end the business relationship. If for some reason this is not appropriate or possible, another approach is to offer the employee the opportunity to take a break when that vendor is scheduled to come to your offices. However, in this case, take care to ensure this action is not perceived as retaliation for making the complaint, and also take steps to ensure the harassment does not happen with the person covering for the complainant.
These two solutions are polar opposites, entailing direct confrontation and none at all. What about a solution that sits somewhere in between?
Some cases of “outsider” harassment may require more delicate handling at a higher leadership level. Let’s say that your nonprofit has a long-time donor who personally delivers a sizable check once a month. This donor has relationships with Board members and executive management that go back years.
Let’s assume your receptionist brings the report of inappropriate conduct to you but alleges this donor was the individual committing these actions. After taking the complete record, you have an idea how to address it: ask someone in senior management to talk to the donor, hoping their long relationship will be a good foundation to raise the issues and handle it properly and effectively. This is a sound approach.
However, when advised of the complaint and the concerns about the employee’s right to be free from harassment, the donor’s response is: “Are you telling me that after I donate thousands of dollars over the years, I can’t make advances to your receptionist?” (It should be noted this response is usually presented in more graphic terms.)
It should be clear that any answer other than yes, and explaining why, is not effectively dealing with the problem. The risk to a long-standing and beneficial relationship must yield to the need to protect employees from this legally prohibited behavior. This scenario also illustrates why these situations can sometimes be more difficult and sensitive to manage than claims of sexual harassment against an “insider.”
Whatever course of action you choose, be guided by the fact that you must take effective action to protect the employee and prevent similar conduct in the future.
In summary, consider the following when dealing with third party sexual harassment:
- Have an effective policy that makes it clear and explicit that sexual harassment committed by anyone, including nonemployees, is prohibited and that if it does happen, the employee has the right and the obligation to report it to the appropriate representative. This information should also be provided to board members in their board orientation materials.
- When a report is made, document the complaint, talk to the reporting employee and get as much information as you can about their interactions, not only on the day in question, but also in the past, to get an idea of the dynamics of the relationship that culminated in inappropriate behavior.
- Take appropriate, swift, and effective action to ensure the employee is not exposed to the person again and is protected from further harassment or retaliation.
As in any situation involving sexual harassment, the best approach is taking proactive and aggressive action with the ultimate goal of delivering the message that this conduct will not be repeated or tolerated, regardless of whether the perpetrator is an “insider” or an “outsider.”
This article does not provide legal representation or legal advice. Nothing provided in this column should be used as a substitute for advice or legal counsel.
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of Federal District Courts in both California and Ohio. During his legal career, he worked for 32 years with a Sacramento law firm where he focused on employment litigation in both State and Federal courts. During that time he defended employers in litigation. In 2016, he began his work as an Employment Risk Manger for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. He lives in Lakewood, Ohio and is a graduate of the University of California, Davis with a Bachelor’s degree in Political Science, and a graduate of the University of the Pacific, McGeorge School of Law.