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Employer may be liable for non-employee harassment


By Allison Champagne

For the first time, the U.S. Court of Appeals for the Second Circuit has determined employers may be held liable for harassment of its employees, even when the harasser is not an employee.  The U. S. Equal Employment Opportunity Commission’s (EEOC) standard for holding an employer responsible for harassment by a non-employee requires the employee to demonstrate the employer either failed to provide a means of filing a harassment complaint, or knew or should have known the harassing conduct was taking place and failed to take remedial action.  The Second Circuit adopted the EEOC’s standard in this recent decision, in which the employee alleged harassment by non-employees.

Alleged harassment by football team members
A female graduate student served as a football team manager.   Players on the team allegedly subjected her to repeated harassment.  The harassmentbegan with oral comments, including suggestions about sexual activty with the student’s boyfriend, another football team member. Statements were also made to the effect  women should not be football managers because they do not know anything about sports.  She then discovered some members of the football team had created a Facebook page, which implied the student had kidnapped her boyfriend, and referred to her as “Miss Piggie” and “The Wannabe Boss Man.”  Finally, the alleged harassment culminated with lewd behavior on a bus ride home after an away game, when an assistant coach played an R-rated film that reportedly had several sex scenes.  During one particular sex scene, a member of the football team turned to the student and made a sexually explicit comment to her.  The team manager began crying and moved to the front of the bus.

Remedial action taken by the University
The team manager reported each incident of alleged harassment.  When she discovered the Facebook page, she complained to the head football coach.  The coach addressed the team, ordering them to remove the page from Facebook, and the team complied.  When the R-rated film was played on the bus, the team manager went to the front of the bus and asked the assistant coach to turn off the movie, which he did.  The assistant coach told the team to be quiet and sat near her for the remainder of the trip.  The following day, the head coach dismissed the player who had made the comment from the football team, reasoning that his lewd behavior on the bus was the “final straw.”  The head coach further alerted his supervisors and reported his findings on the incidents.

The team manager also discussed the alleged harassment with the dean of students, who then sent her to the university’s equality officer and instructed the student to file an internal written complaint.  After investigation, the equality officer sent a memorandum of her findings to the university’s vice-president for legal affairs.  The university also provided training for educating the coaches and members of the athletic staff about the university’s harassment policy.

Application of the EEOC’s standard for non-employee harassment
The team manager filed a lawsuit against the university claiming sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and other anti-discrimination laws.  A federal district court in New York found in favor of the university, concluding the team manager had not experienced a hostile work environment, and further, even if she had established a hostile work environment, no liability could be imputed to the university because it had appropriately handled the student’s complaints.  The team manager appealed.

Applying the EEOC’s standard for holding employers responsible for harassing conduct of non-employees, the appellate court stated it “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.”  Furthermore, the court explained the team manager must show the university failed to provide a reasonable way to file a complaint, or that the university knew or reasonably should have known that the harassing conduct was taking place but failed to remedy the conduct.

The appellate court determined, without hesitation, the university and football coaches had a high degree of control over and legal responsibility for the football team members, and either knew or should have known the harassment was taking place.  Therefore, the EEOC’s standard governing non-employee applied.  

Ultimately, the court found the university had satisfied its obligation to take prompt remedial action. Specifically, the head coach had required the team to take down the insulting Facebook page.  Upon the team manager’s request, the assistant coach had turned off the R-rated movie and sat near the student for the remainder of the bus ride.  Furthermore, the lewd-acting football player was removed from the team.

The court also acknowledged, “each complaint that was brought directly to [the head coach’s] attention was dealt with quickly and in proportion to the level of seriousness of the event. The fact that [the head coach] took action at once completed within just days of all cases speaks to the appropriateness of the University’s response in this case.”  Moreover, the university required the entire athletic staff to undergo sexual harassment training.  Therefore, the university could not be held responsible for the football players’ harassment of the female manager.

In this case, the employer was not held liable for the non-employees’ sexual harassment because it took proper remedial action in response to the employee’s complaints.  This should serve as a lesson to employers that they can be held legally responsible for the conduct of a non-employee.  Any and all complaints of harassment should be taken seriously and documented along with any investigations, and, where inappropriate conduct has occurred, prompt remedial action must be taken.


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