Non-Employee Harassment Comes to the Fourth Circuit

In a recent unpublished decision, the U.S. Court of Appeals for the Fourth Circuit (the federal appeals court covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) held that an employer can be held liable to one of its employees who is harassed off of the employer’s premises by the employees of a customer. In so holding, the Fourth Circuit followed the lead of the EEOC and other federal courts that have addressed this issue and adopted a “negligence” standard for liability. This means that an employer can be liable for harassment of one of its employees by a non-employeeif it knew or should have known of the harassment and failed to take prompt, appropriate remedial action to stop it. As exemplified by this recent decision, a claim of non-employee harassment can put an employer in the uncomfortable position of having to confront a customer regarding allegedly inappropriate behavior. In any event, this case highlights the need for employers to be sensitive to and investigate all claims of workplace harassment.–David J. Sullivan