Tuesday, August 7, 2018

Despite what one court held, workplace discrimination laws DO protect employees from non-employees



Pop quiz: Can an employer ignore harassment or other discriminatory behavior directed at employees by non-employees?

If your answer is "yes," you'd be in agreement with the court in Shaw v. Access Ohio (Ohio Ct. App. 7/27/18).

You'd also be dead wrong.

Elaine Barrow, African-American, worked as a counselor for a Medicaid-funded mental health and substance abuse treatment center. She claimed that two Caucasian residents (Donnie and Travis) subjected her a racially hostile work environment, and further that her employer ignored it.

She alleged that around Halloween, 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 a "n*****" on numerous occasions.… She also contended that Access permitted the hostile work environment to exist.

The court, however, said "no harm, no foul." Because Donnie and Travis were not employees of Access Ohio, their conduct could not create an unlawful hostile work environment.

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.

This court mistakenly assumed that the law does not cover employees harassed by non-employees. Nothing is further from the truth. In fact, an employer's obligations to an employee harassed by any non-employee are exactly the same as if the alleged perpetrator was an employee—to investigate and take prompt remedial action to ensure that the harassment stops and does not re-occur.

Indeed, Ohio even has a specific regulation covering this scenario: Admin. Code 4112-5-05(J)(5):

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.

In other words, ignore any harassment, whether by an employee, customer, vendor, delivery person, or anyone else, at your own risk. You've been warned.

* Photo by Jason Briscoe on Unsplash
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