In today’s economy, the “workplace” includes not only co-workers but also a wide range of independent contractors, consultants, and other individuals who are not fellow employees but who work for themselves or for another company. If an employee alleges that he or she was harassed in the workplace by someone else who is not a fellow employee, can the employee hold her employer liable for not preventing or addressing the harassment by the non-employee?
U.S. District Judge DuBois of the district court in Philadelphia, in Hewitt v. BS Transportation, et al. (E.D. Pa. Jan. 15, 2019), recently held that an employee could bring sexual harassment claims against his employer, a transportation company, where the employer knew that he was being harassed in the workplace but took ineffective steps to address it.
Hewitt (the plaintiff) was a fuel truck driver for BS Transportation, and one of his routes was to transport fuel from a Sunoco refinery. A Sunoco employee repeatedly made sexual comments and sexual advances towards Mr. Hewitt, which Mr. Hewitt unsuccessfully protested.
The Sunoco employee’s supervisor knew of the harassment, but did nothing to stop it. Mr. Hewitt protested to his own supervisor at BS Transportation, who initially said he had talked to the harasser, but the BS Transportation supervisor did nothing further to investigate the complaints, and the harassment soon resumed.
Judge DuBois held that the plaintiff had properly pled both his hostile work environment claims against BS Transportation, because his supervisor “was aware of plaintiff’s harassment by […] a Sunoco employee […] and ‘assured Plaintiff he would take care of it. Then Defendant asked Plaintiff not to say anymore about it […] However, Defendants failed to investigate or take appropriate remedial action.'”
For the same reason, the court held that the plaintiff had also properly pled his aiding-and-abetting claim against his former supervisor.This decision is of importance in making clear that employers can be held liable for the conduct of others in the workplace, even those who are non-employees, where the employee complained to management about the harassment, and management took little or no action to address and prevent the harassment.
Given the increasing proliferation of “non-employees” in the workplace – whether independent contractors, consultants, or employees of customers and vendors – it is important that the anti-discrimination laws protect all employees regardless of who does the harassment or other discrimination.