The New York State Human Rights Law requires all employers in New York—no matter the number of employees—to provide a workplace free from sexual harassment.
This means that an employer must provide a workplace free from sexual harassment, regardless of who the harasser is. New York employers are required to take appropriate action based on an employee’s complaint. In addition, any non-employees, like contractors, subcontractors, vendors, consultants, or anyone providing services in the workplace, are also protected from harassment (and other discriminatory actions) at a location where they are working.
Protected non-employees include those known as independent contractors or “gig” workers and temporary workers. This also includes individuals who provide equipment repair, cleaning services, or any other services provided pursuant to a contract with the employer.
However, it is more common for a third party to be the offending party, and an employee to be the victim.
What is Third-Party Sexual Harassment?
Third-party sexual harassment is harassment of an employee by someone other than another employee, such as by a client, customer, vendor, or service provider.
Known that a hostile workplace based upon allegations of sexual harassment is not a function of the status of the harasser—but rather is based on the fact that a hostile workplace has been created by the harasser (no matter who it is), and the employer has failed to address.
An employer is responsible for preventing and stopping harassment by anyone. Again, this may be a member of the staff, such as management and other employees, as well as anyone who is not an employee.
What Constitutes Illegal Sexual Harassment?
Something like petty slights, annoyances, and isolated incidents (unless it is extremely serious) do not typically rise to the level of illegal sexual harassment.
To be unlawful, the behavior must create a work environment that would be intimidating, hostile, or offensive to reasonable people. Offensive conduct may include:
- Offensive jokes;
- Slurs or epithets;
- Name calling;
- Physical assaults;
- Threats or intimidation, ridicule, or insults;
- Offensive objects or pictures, and
- Interference with work performance.
Also, employers should understand that unlawful harassment may happen without economic injury to, or discharge of, the victim.
How Does an Employee Establish Third-Party Sexual Harassment?
To prove harassment, an employer (or a third party who experiences sexual harassment in the employer’s workplace) must satisfy each of the elements of a sexual harassment claim. The victim must show either quid pro quo sexual harassment or hostile work environment harassment.
- Quid pro quo harassment happens when a manager or other person with apparent authority over an employee demands sexual favors from the employee in return for continued employment or some employment benefit.
- Hostile work environment harassment occurs when an employee is subject to unwelcome sexually-offensive conduct that
- Unreasonably changes his or her employment conditions;
- Interferences with their performance; or
- Creates an abusive, intimidating, hostile, or offensive work environment.
This behavior must be severe or pervasive under federal law, or more than “petty slights or trivial inconveniences” under New York state law, and the conduct is viewed from the perspective of a reasonable person in the employee’s position, in light of all the circumstances.
In addition to proving these elements, an employee must show that the employer knew or should have known about the harassment.
What Should Employers Do If They Encounter Third-Party Sexual Harassment?
Under New York and federal law, employers are responsible for third-party conduct if they knew or should have known about the conduct and failed to take appropriate corrective action. Employers can also be liable if they have failed to provide a reasonable process for a complaint or report of the conduct.
Employers should take proactive steps to take preventative measures to discourage third-party sexual harassment. This may be actions such as providing regular sexual harassment education to employees and supervisors that address this issue. This should include topics such as what constitutes sexual harassment, the employees’ right to be free of sexual harassment, and the employer’s reporting and investigation procedures.
Moreover, employers should state and regularly update their policies in the company’s employee handbook and create a procedure for reporting such a claim. A business owner should take the following actions if they are aware of illegal third-party sexual harassment:
- Demand that the third party leave the premises;
- Ask the vendor to replace the representative with another;
- Remove the company from the offending vendor’s territory;
- Make certain that employees and the third party are never alone while at work; and
- Close the account with the offending vendor’s company.
New York employers must take reasonable steps to immediately and thoroughly investigate the complaint and stop the harassment if it has happened and must include interim steps to protect the employee’s safety while the allegations are being investigated.
Employers should document what they did to address the third-party sexual harassment complaint. They should gather evidence, interview witnesses, and describe the steps taken with a detailed timeline. This evidence should be preserved in case the employee files a lawsuit.
In addition, employers cannot retaliate against the employee for making a third-party sexual harassment complaint.
What To Do?
Everyone deserves a work environment where they feel safe and respected. Small business owners protect their own best interests and bottom line when they foment that culture in their organizations. It’s much easier to ensure supervisors, employees and third parties are treating each other properly, than to have to investigate, remediate and replace offenders.
LOVE LAW FIRM enjoys helping businesses create cultures of compliance. Reach out to us for help, before you actually need it.
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.