The Employer’s Duty To Protect Oregon Employees From Harassment By Third Parties

by Jim Vogele

Oregon employees are entitled to a workplace free from harassment and discrimination.  An Oregon employer’s duty to protect its employees extends to harassment and discrimination by third parties such as the employer’s customers, contractors and outside vendors.  As discussed below, if you are an Oregon employee who has experienced harassment or discrimination at work by third parties, you should contact an Oregon employment lawyer.  The discussion below summarizes the law governing third party harassment and discrimination in the workplace.

Oregon Law on Third Party Harassment and Discrimination

According to the Oregon Bureau of Labor and Industry (“BOLI”):

“An employer is liable for harassment by a non-employee if the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action.  When evaluating a complaint, the Civil Rights Division considers how much control the employer has over the non-employee.  For example, an employer is considered to have a great deal of control over an individual who is on the premises to fill a vending machine.  An employer can call the vending company and request a different service person, can hire an alternate company, or can even have the machines removed.  OAR 839-005-0030(7).”

Civil Rights Laws, A Handbook for Oregon Employers,” BOLI (2012 Ed.), p. 68.

Federal Law on Third Party Harassment and Discrimination

Federal law also clearly provides that an employer has a duty to protect its employees from harassment by third parties, including customers of the employer and even passers-by.  In Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998), male customers harassed a female waitress on several occasions.  The waitress complained to management, who refused her request to be excused from waiting on these men.  One of the men subsequently pulled the waitress’s hair and groped her breasts while at the restaurant.  The Tenth Circuit Court of Appeals upheld a jury award of $200,000, finding the employer liable for the hostile environment created by its customers – because the employer was aware of the harassment and did nothing about it.

In Freitag v. Ayers, 463 F.3d 528 (9th Cir. 2006), the Ninth Circuit Court of Appeals – which includes Oregon –  held that the California Department of Corrections could be liable for the harassment of female correctional officers by male inmates:

“In the Ninth Circuit, employers are liable for harassing conduct by non-employees “where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.”  Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir.1997);  see also Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir.2002).   In recognizing that employers may be liable for third-party conduct, we, along with several other circuits, see, e.g., Berry v. Delta Airlines, Inc., 260 F.3d 803, 811-12 (7th Cir.2001);  Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir.2001);  Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir.1997), have relied in part upon a regulation of the Equal Employment Opportunity Commission that provides that employers may be held liable for the acts of non-employees where the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”  29 C.F.R. § 1604.11(e).   This theory of liability is grounded not in the harassing act itself  – i.e., inmate misconduct – but rather on the employer’s “negligence and ratification” of the harassment through its failure to take appropriate and reasonable responsive action.   See Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir.2005).”

The principle that employers must protect employees from third party harassment was endorsed earlier this year by a federal trial court in Oregon.  In Piety v. City of Sweet Home, No. 6:11-cv-6303-AA (D.Or. 2013), the court denied summary judgment to the employer where, “the harassing behavior came not from the employer or its employees, but essentially the customer, i.e., the park users [who used racial slurs and graffiti directed toward a mixed-race husband and wife caretakers of the park].  The City may be held liable for harassment on the part of private individuals where the City either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.”).

Actionable Harassment or Discrimination Is Typically Severe

Note that where harassment is considered minor or is a single, isolated incident, courts may find that there is an insufficient basis for liability.  In Peters v. Wal–Mart, 876 F.Supp.2d 1025 (N.D. Ind., 2012), the plaintiff employee received only one phone call from a caller outside the store which contained racially offensive language: The court observed that, “Even if plaintiff received more than one phone call, plaintiff’s claim would still fail because the record contains no evidence that defendant should be liable, as her employer, for the callers’ conduct. An employer can be liable for harassment committed by third parties [only] if it “unreasonably fail [ed] to take appropriate corrective action … reasonably likely to prevent the misconduct from recurring.”)

Employer Awareness Is Key to Stating a Claim Involving Third Parties

In summation, the employer’s liability in third party harassment cases turns on whether the employer was aware of the conduct and whether it responded in a timely and appropriate manner.  See Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997) (employer may be responsible for sexual harassment toward employees by acts of nonemployees).

If you believe that your employer has failed to provide a workplace free from harassment and discrimination by third parties, you should contact an Oregon employment lawyer to discuss your rights and remedies.