Monday, June 24, 2019

The Customer isn’t always right: The Museum of Sex(ual harassment)

Just because an employee works at The Museum of Sex does not mean that she wants be sexually harassed. Or least that’s what Katherine McMahon alleges in her lawsuit against her former employer.

The New York Post offers the salacious details:

“Patrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives,” the suit alleges. 
One time, the Upper East Side woman was asked by two visitors if they could “have sex in the bounce house,” her suit says. 
The unusual bounce house consists of giant inflated breasts for guests to jump on, according to the sex-positive museum’s website. 
McMahon told them public sex was illegal and that they couldn’t. But they countered by asking her to “spank them,” the court papers claim.

She further alleges that when complained to management about her mistreatment, she was told it’s “the nature of the establishment.”

For its part, the Museum calls the lawsuit “meritless” and “baseless,” and further that it “makes every effort to protect its employees.”

Let’s be clear, however, that an employer’s obligations to keep its workplace free from unlawful harassment extends to harassment of employees by other employees and by non-employees. Indeed, Ohio even has a specific regulation addressing harassment by non-employees:

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.

A harassment complaint is a harassment complaint, regardless of the alleged perpetrator. An employer cannot treat a complaint by an employee against a non-employee any differently than an intra-employee complaint:

  1. Separate the complaining employee from the alleged harasser.
  2. Promptly and fully investigate the allegations.
  3. Evaluate the evidence and make a reasoned conclusion as to what happened.
  4. Take prompt and effective remedial steps, if necessary.
  5. Use the complaint as an opportunity to retrain employees about your anti-harassment policy.

“The customer is always right” still holds true for most things, but not if the customer is unlawfully harassing your employees.

* Image by gniliep [CC BY 2.0], via Flickr