May 2019 Newsletter – Sexual Harassment of Non-Employee

An Employer Can Be Sued Over Sexual Harassment by a Non-Employee

In the 2019 Eastern District of Pennsylvania case Hewitt v. BS Transp. of lll., LLC, 355 F.Supp. 3d 227, the Honorable Jan F. DuBois held that the defendant employer may be held liable for discrimination (sexual harassment) by a non-employee, under the theory of hostile work environment, “where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”  Because the Third Circuit of Appeals has not addressed this issue, the Court looked to other courts that have held that the employer may be liable.  In Hewitt, Plaintiff was employed by defendant BS Transportation as a freight driver.  His job duties entailed driving a truck to defendant Sunoco’s refinery and loading oil into the truck on a weekly basis.  While at the Sunoco refinery, Plaintiff alleged that a Sunoco employee would routinely sexually harass him, both verbally and physically.

While the Court dismissed many of the Plaintiff’s claims, the Plaintiff was allowed to proceed on his claims for sexual discrimination against his employer, defendant BS Transportation, stemming from the allegations that his employer failed to take action on his reports to his supervisor that a non-employee of BS Transportation who was employed by Sunoco was regularly sexually harassing him during the course of his employment.  The Plaintiff reported the sexual harassment to his supervisor on numerous occasions and his supervisor engaged in a discussion with the non-employee’s supervisor at Sunoco on at least one occasion.  No action was taken as a result of these reports.  Plaintiff continued to be sexually harassed by the Sunoco employee and the unwanted contact escalated to threats of physical violence.

We will continue to monitor developments in both Federal and State Courts as this ruling is addressed in subsequent court decisions. However, this recent opinion reemphasizes to our business clients the importance of paying attention to any and all allegations of sexual harassment in the workplace, even from non-employees, as one lawsuit can cost hundreds of thousands of dollars to settle and/or defend. We cannot stress enough that the burden of preventing sexual harassment rests on the employer. Therefore, at a minimum, our business clients must protect itself and the following checklists from the United States Equal Employment Opportunity Commission. (“EEOC”) is a useful Employer tool in thinking about and taking steps to prevent harassment in the workplace and responding to harassment when it occurs:

• An unequivocal statement that harassment based on any protected characteristic will not be tolerated;
• An easy-to-understand description of prohibited conduct, including examples;
• A description of a reporting system-available to employees who experience harassment as well as those who observe harassment-that provide multiple avenues to report, in a manner easily accessible to employees;
• A statement that the reporting system will provide a prompt, thorough, and impartial investigation;
• A statement that the identity of an individual who submits a report, a witness who provide information regarding a report, and the target of the complaint, will be kept confidential to the extent possible consistent with a thorough and impartial investigation;
• An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred;
• An assurance that an individual who submits a report (either of harassment experienced or observed) or a witness who proved information regarding a report will be protected from retaliation from co-workers and supervisors;
• A statement that any employee who retaliates against any individual who submits a report or provided information regarding report will be disciplined appropriately; and,
• The statement is written in clear, simple words, in all languages commonly used by members of the workforce.

If you have any questions or inquiries concerning your business and this subject matter, please do not hesitate to contact us to speak with one of our experienced attorneys.