Employers who seek to avoid sexual harassment claims must do more than make sure that their employees behave. Employers can also be liable for how third parties (customers, clients, vendors, contractors, etc.) treat their employees.
In California, it’s the same standard that applies to non-supervisory co-workers. If the employer knew, or reasonably should have known, of the harassment and fails to take prompt remedial action, the employer is liable.
Our friends over at the Employment Discrimination Report just posted this item about a prison guard suing because the employer didn’t do enough to prevent inmates from harassing her. I wrote about the same issue two years ago (You Think Your Customers Are Bad?) and discussed how the California Department of Corrections argued that it could not be held responsible for harassment by inmates in the Secure Housing Unit at Pelican Bay State Prison. The Ninth Circuit rejected that argument in Freitag v. Ayers.
There are lots of businesses where employees have to deal with poorly controlled third parties, bars being one obvious example. But those employers still have a legal duty to protect their employees from harassment. Unless an employer can show that its employees deal with third parties who behave significantly worse than California’s most violent and incorrigible prison inmates, the obligation remains.