Ask an HR Expert: Our Employee Has Been Harassed by a Nonemployee. How Should I Handle That?

Employers are obligated to protect workers from harassment, regardless of who the harasser is.

By Brenda Ortega, SHRM-CP May 25, 2018
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Ask an HR Expert: Our Employee Has Been Harassed by a Nonemployee. How Should I Handle That?

Address harassment by a nonemployee in the same manner you would harassment by another employee. In light of the #MeToo movement, it’s more important than ever to do so promptly and appropriately. The U.S. Equal Employment Opportunity Commission (EEOC) defines a nonemployee as any individual an employer has control over. That could be a customer (who can be refused service), an independent contractor (whose business relationship may be terminated) or just about any individual who has direct interactions with employees that the employer can influence in some way.  

While most businesses have policies in place on how to address workplace harassment, many fail to specify how the issue should be handled when it involves nonemployees. That’s a missed opportunity, since employers are obligated to protect workers from harassment, regardless of who the harasser is, under federal legislation—including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act—and state and local nondiscrimination statutes. 

When an employee claims that a nonemployee is harassing him or her, typically the first action you should take is to conduct an investigation. Just as you would in any other instance of potential harassment, interview the witnesses and document the steps you take and the information you gather. In some instances, however, an immediate response may be warranted. For example, you might need to tell a customer to stop acting inappropriately, reassign a disrespectful client’s account to another employee or have a troublesome patient check in with a different receptionist to avoid any further interaction with the worker who lodged the complaint. It’s important to remember that once an employee has brought forward a concern or claim, it becomes a protected activity and you cannot retaliate or take any adverse action against that person for exercising his or her rights. 

Ignoring a complaint involving a nonemployee could result in liability, according to the EEOC, particularly in cases where an employer knew or should have known of the harassment but failed to take immediate and appropriate action. The EEOC states that “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.”

To mitigate your risk, clearly communicate to your workforce that unwelcome harassment will not be tolerated from anyone—including nonemployees. Make sure you establish an effective complaint process, provide harassment training to both managers and employees, and, most important, take immediate action when a complaint has been communicated. 

Brenda Ortega, SHRM-CP, is an HR knowledge advisor for SHRM.

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