Sexual Harassment in the Workplace by Non-employees.
Harassment in the Workplace by Non-Employees
By John W. Davis
It is universally accepted that a company is exposed to liability if its employee subjects another employee to sexual harassment. This can be true even if the individual who is committing the acts of sexual harassment is not in management or ?superior? to the individual who is the subject of the sexual harassment.
Can a company be liable for sexual harassment for acts or conduct committed by people who are not on the payroll? The answer is a qualified yes.
Imagine the following scenario. A man owns a bar. His best male friend constantly comes into the bar. He is given preferential treatment because of his relationship with the owner. The friend even has keys to the office. This same friend also openly sexually harasses an employee. In this scenario, it is highly likely that the owner would be liable for sexual harassment.
Imagine another scenario. A man owns a construction company and is working on the Big Dig. He sub-contacts with another company, whose employee sexually harasses an employee of the first company. The major issue is whether the construction company knows (or should know) about the sexual harassment. If there is no possible way for the company to have known about the sexual harassment by a non-employee, the company will not be liable. If the company knows about the sexual harassment, and the company has some degree or measure of control over the non-employee, the focus is on whether the company took reasonable steps to stop the sexual harassment. Even if the company is not entirely successful in stopping the sexual harassment, it will likely not be liable if it took reasonable efforts to do so. Of course, the issue of ?reasonableness? varies on a case-by-case approach.
Justice Martha B. Sosman of the Massachusetts Supreme Judicial Court recently discussed this issue in the case of Modern Continental/Obayashi v. MCAD, lw 10-149-05.
