Third-Party Harassment

Koko the Gorilla, who turned 46 last month, has quite a following. Much of that has to do with the fact that she purportedly has a vocabulary of over 1000 words that she communicates through sign language. If this were a blog about linguistics, primate behavior, or how the Planet of the Apes movies are a cautionary tale about future inter-species conflict, we’d delve into that further. But it’s not. So let’s talk about another thing Koko is famous for.

Koko is the only western lowland gorilla to be accused of sexual harassment. In 2005, two women working for the Gorilla Foundation in Woodside, CA (southwest of Redwood City) sued claiming that the president of the Foundation pressured them to expose their breasts to Koko. According to the lawsuit, which settled for undisclosed terms:

“On at least two incidents in mid-to-late June 2004, Patterson intensely pressured Keller to expose herself to Koko while they were working outside where other employees could potentially view Keller’s naked body. … On one such occasion, Patterson said, ‘Koko, you see my nipples all the time. You are probably bored with my nipples. You need to see new nipples. I will turn my back so Kendra can show you her nipples.'”

Both women further allege that they declined to “indulge Koko’s nipple fetish.” If this were a blog about gorilla’s sexual predilections, we’d delve into that deeper. But it most assuredly, is not. It’s about California Employment Law. We make that pretty clear at the top of the page. So what does any of this have to do with California employment law?

For employers, preventing harassment requires more than just controlling their employees. Companies can also be liable for harassment of their employees by third parties if the company fails to take prompt and effective measures to address the harassment. Employers can’t necessarily control the behavior of customers, clients, vendors, contractors, and everyone else their employees interact with in their work. But if you’re an employer, you should take these steps:

  1. California regulations require that a company’s sexual harassment policy prohibit harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. So ensure that your harassment policy contains that language.
  2. Ensure that your harassment policy directs employees whom to complain to if they are subjected to harassing behavior by third parties.
  3. Train your supervisors to notify human resources immediately if these issues come to their attention.
  4. If issues of third-party harassment arise, make sure that the company conducts a prompt and thorough investigation.
  5. If the facts developed in the investigation warrant, take prompt remedial action that is reasonable to prevent the situation from recurring.
12506543 – western lowland gorilla portrait (gorilla gorilla gorilla) captive. national zoo. washington dc, usa.

This last step can be complicated. You can’t necessarily counsel or discipline third parties the way you can with employees. In extreme cases, companies have even had to fire clients who refuse to treat the companies’ workers appropriately. Fortunately, that’s just in extreme cases — where the clients insist on behaving like gorillas.

 

 

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.