Employer Harassment Liability

In discussing harassment today, we touched on the fact that employers are especially liable for harassment by managers. When it comes to harassment by employees (usually involving hostile environment-type harassment claims), the employer may defend itself by proving that (1) the employer took reasonable care to prevent and correct the harassment and (2) the employee unreasonably failed to take advantage of the employer's harassment-reporting mechanisms.

But employers' harassment liability does not stop at its employees. In "Nurse May Sue for Third Party Harassment", the Seventh Circuit Court of Appeals rejected the lower court's ruling that the employer was not liable for harassment because the harasser was an independent contractor. The court stated,

"[I]t makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Ability to 'control' the actor plays no role."

The court them continued,

"Employers are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use (or failure to use) these options that makes an employer responsible - and in this respect independent contractors are no different from employees"

What are the implications of the holding that the employer is liable for maintaining a harassment-free work environment? I suppose the court wants to emphasize the importance of employers implementating effective harassment-reporting mechanisms. But does this put too much responsibility on employers? In the Muir reading for today, Muir states that an employee raped by a coworker may succeed under a hostile-environment harassment claim. But through this same line of thinking, should a "stop-and-rob" convinience store be held liable if an employee is raped by a customer?