Does My Job Have To Stop Harassment By Customers?

Best Ohio Sexual Harassment Lawyer Reply: What should I do if I am being sexually harassed at work by shoppers? Does my boss have to stop customers from racially harassing me while I’m working? What if a shopper is harassing me for reasons besides sex? I am being sexually harassed by customers at work, is there anything I can do?

My boss is sexually harassing me. My manager is hitting on me. The owner where I work keeps asking me to have sex. When someone talks about being sexually harassed at work the usual suspects that come to mind are the superiors and coworkers at the workplace. However, for many employees, especially in the service industries such as retail, and restaurant workers, as well as housekeepers in the hospitality industry, a significant amount of harassment comes from another source, customers. Thankfully the best Ohio employment law lawyers of The Spitz Law Firm, LLC are here to help!

Workplace harassment is unwelcome conduct that is based on race/color, religion, gender/sex, national origin, age, disability discrimination, or genetic information. Workplace harassment becomes unlawful where (1) putting up with the harassing conduct is made a condition of continued employment, known as quid pro quo harassment; or (2) the conduct is severe and pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive, known as hostile work environment. Now, not every offensive thing that is done at work creates a hostile work environment. Minor or inconsequential snubs and slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the point of being unlawful or rise to the level of having a discrimination claim. To be unlawful or to give an employee a potential claim, the conduct must create a work environment that a reasonable person would consider to offensive, intimidating, or hostile. Ohio courts have also held that unlawful harassment may be found when an employer engages in or permits physical assaults or threats, slurs, epithets, name calling, offensive jokes, intimidation, ridicule, mockery, insults, offensive objects or pictures (such as nooses or porn) and interfering with the ability to do the job. Of course, to be unlawful, this type of conduct must be based on an employee’s protected class (race/color, religion, gender/sex, national origin, age, disability discrimination, etc.). Our employment discrimination attorneys have blogged about examples of such type of unlawful harassment before. (See Top Race Discrimination Lawyer Rely: My Boss Called Me A “Nigger” and “Porch Monkey.” What Should I Do?; My Racist Boss Says “Nigger,” “Wetback,” “Wagon Burner,” & “Beaner” All The Time! I Need A Lawyer!; My Boss Called Me A Bitch And Made A Pass At Me. I Need A Lawyer!). While such conduct need to typically be severe and pervasive, our employment law lawyers have previously blogged about exceptions. (See Race Discrimination: Using The “N-Word,” Even Once, Can Create A Hostile Work Environment; Can I Sue If My Boss Racially Discriminated Once? I Need A Lawyer!).

In Ohio, there are two sets of laws that our attorneys can use to help you make a claim and protect you from this type of unlawful harassment, including the federal laws found in Title VII of the Civil Rights Act of 1964, as well as state law found at Ohio Revised Code § 4112.01, et seq.

While most employees understand that these laws protect them from such harassing conduct from the boss, manager, supervisor or even the owner of the company, these employment laws also make itis the employer’s duty to protect its employees from harassment by customers. As our employment discrimination lawyers have blogged before, employers who allow customers to be harassed by customers are liable under both Ohio and federal laws. (See Race Discrimination: Customers Are Not Always RightRetaliation: Now That’s A Lot Of Waffles! | The Spitz Law FirmThe Customer Isn’t Always Right | The Spitz Law Firm). Specifically, Ohio regulation 4112-5-05(J)(5) provides:

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to Sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

Similarly, federal law 29 CFR § 1604.11(e), which deals with sexual harassment, provides:

An employer may also be responsible for the acts of non-employees, with respect to Sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.

It is important to note that the employer must have knowledge or should have had knowledge of the customers harassing behavior. In a recent federal sexual harassment case, an employee claimed she was being sexually harassed by a customer. The jury agreed and awarded $200,000 to Dawn Suppo after finding that a customer had been stalking, and repeatedly sexually harassing her. According to Dawn, over the course of a year a customer repeatedly asked her personal questions such as where she lived, and if she was dating anyone. The Customer was also seen videotaping Dawn, and frequently told her she was “pretty” or “exotic” and attempting to hug her and hold her hand. The jury found that, Dawn complained to management multiple times about the customers’ sexual comments, unwanted touching, and flat out groping, but that Costco did not take appropriate action to stop the customers harassing behavior. On appeal, another federal court upheld the $200,000 jury award, finding that where the employer may be held liable when they know or have reason to know about the customers harassing conduct and does not take immediate or appropriate action to stop the harassment.

The bottom line is that while an employer may not be able to control the actions of all customers, visitors, and other third parties at its business all the time an employer can control how it responds to an employee’s complaint about these customers and visitors sexually harassing them. When the employer fails to adequately respond, legal liability is possible.

If you are being harassed by a third party at your workplace you should immediately inform your supervisor. If your supervisor blows you off or does not take appropriate action, then you need to call the right attorney and discuss if you have a claim.

Now, unfortunately, this is a complex set of laws that not everyone understands – even some courts. This is why it is really important to get the best employment discrimination lawyer that you can that is part of a good firm with resources. A recent case out of Montgomery County demonstrates that courts are not infallible. In Shaw v. Access Ohio, the Second District Court of Appeals wrongly held an employer is not liable to employees who experience discrimination by non-employees. If you think that I’m being biased, check out this link to an employment defense attorney and his opinion: Despite what one court held, workplace discrimination laws DO protect employees from non-employees.

In that case, Elaine Barrow, an African-American woman, worked as a counselor for a mental health and substance abuse treatment center and was harassed by two Caucasian residents. Elaine claimed that the two residents (Donnie and Travis) racial remarks and actions, created a racially hostile work environment, one that her employer knowingly ignored:

Elaine claimed that around the Halloween season, the two Caucasian residents known as Donnie and Travis painted a skeleton black and hung it by a noose on their dormitory door, along with a sign that had “Hi Elaine” written on it. Barrow also claimed that Donnie had referred to her as the N word on numerous occasions.… She also contended that Access Ohio permitted the hostile work environment to exist.

However, the Court did not find the employer, Access Ohio liable for allowing this hostile environment to exist. The Court let the employer off the hook because Donnie and Trevor were not employees of Access Ohio. The Court held:

We conclude that the claim for hostile work environment must fail; Barrow has failed to demonstrate the existence of respondeat superior liability as neither Donnie nor Travis was an employee of Access. And, as stated above, Barrow does not claim that that any employee of Access was involved with the skeleton or Donnie’s statements.… In fact, Barrow does not claim that any employee of Access made racial remarks to her, about her, or in her presence.… Although the challenged remarks are abhorrent and demeaning, they appear to be isolated and not made by any agent, employee or decision-maker of Access.

Despite this decision, an employer does have a duty to investigate, and take immediate action to make sure that customer harassment of employees stops and does not happen again.

Remember harassment by a customer, or other non-employee is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws.

Sexual harassment is a form of gender discrimination. If you feel that you are being sexually harassed by an employee or non-employee, or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney at (216) 291-4744 to schedule a free and confidential consultation. Similarly any other kind of harassment based on race/color, religion, national origin, age, disability discrimination by a customer, or other non-employee is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws. Harassment based on that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information is a form of employment discrimination and is unlawful. If you feel that you have been harassed for any of these reasons you should not wait to call the right attorney at (216) 291-4744 to schedule a free and confidential consultation. At The Spitz Law Firm, LLC, you will meet with an experienced employment discrimination attorneys to find out what your legal rights are and the best way to protect them. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from employment discrimination.

Disclaimer:

The materials available at the top of this page and at this gender discrimination, wrongful termination, and sex harassment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “what should I do if my manager wants to fuck me?”, “I’m being sexually harassed at work,” “my supervisor grabbed my ass”, “my boss is touching my breasts” “I’ve been wrongfully terminated,” or “how do I report sexual harassment at work?,” your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice with respect to sexual harassment/hostile work environment questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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