The Customer Is Not Always Right!

The customer is not always right, especially if he is sexually harassing an employee.

“Have you ever seen the movie Horrible Bosses with Kevin Spacey?” I inquire, when I am asked what type of lawyer I am. I tell them, “I find those mean bosses and sue them and their companies.” I will usually get a smile or a chuckle, followed by the comment, “sounds rewarding.” But more often than I would hope, especially from women, the response is usually something like this:

“Wow, I wish I knew you earlier! I could have used you a couple of years ago when I had a really creepy boss. He was sexually harassing me.”

In response to this devastating news, I always ask the following question: “Did you report him?”

“No” they reply, “I was afraid I would lose my job” or “I just tried to ignore it.”

People, especially women, in many instances are expected to just ignore inappropriate sexual advances, sexual comments, vulgar behavior, unwanted or unsolicited conduct, and the list goes on. The EEOC has found that 25% to 85% of women report having experienced sexual harassment in the workplace.* However, approximately 90% of individuals who say they have experienced harassment never take formal action against the harassment, such as filing a charge or a complaint.*

In the face of debilitating and egregious sexual misconduct, the message in the workplace  is simple: Just ignore it. Even by customers, women are expected to brush off sexual harassment, and instead, are expected to fall on the sword and adhere to the notion of “the customer is always right” This culture ignoring the employer’s duty to protect its’employees from sexual harassment in the workplace.

The U.S. is currently in the middle of a powerful movement to trample out sexual harassment, in all of its forms, within the workplace. The #metoo movement has already called out and brought to justice a host of perpetrators that have benefited from the insidious power play of sexual harassment. This is only the beginning. It is paramount that in the face of sexual harassment, a victim must be encouraged to do the most courageous act that to combat the unwanted inappropriate behavior: report it.

But why? And how?

First of all, employers are rightfully afraid to be the person or company in the headlines that allow their employees to be sexually harassed and do not support their employees when they discovered that sexual harassment is occurring. The worst thing an employer can do to tell a victim to ignore it sexual misconduct, and do nothing. 

In the workplace, state and federal law protects against sexual harassment as well as retaliation for reporting sexual misconduct. In Washington, two main sources of law are (1) the federal Title VII of the Civil Rights Act of 1964; and (2) the Washington Law Against Discrimination, RCW 49.60 et. seq. (“WLAD”)

The WLAD states that “practices of discrimination against any [Washington] inhabitants… are a matter of state concern” and that “such discrimination threatens not only the rights and proper privileges of [Washington] inhabitants but menaces the institutions and foundation of a free democratic state.” RCW 49.60.010. In addition, RCW 49.60.030 states that the right to be free from discrimination is a “civil right,” which includes the right to hold employment without discrimination. And RCW 49.60.020 states, “The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof.” RCW 49.60.180(3) establishes that it is an unfair practice for an employer “[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … sex.” Under RCW 49.60.030(2), a person discriminated against in violation of the WLAD may bring a civil action.

One form of sex discrimination or is a “hostile work environment” claim. Antonius v. King County, 153 Wash.2d 256, 261, 103 P.3d 729 (2004). To establish a claim of a hostile work environment the plaintiff must present tangible evidence that “(1) the harassment was unwelcome, (2) the harassment was because of sex, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id.  

What does it take to make a work environment hostile?

Under the WLAD, in order to be sufficient to show that an environment is hostile, it must be so severe as to affect the “terms and conditions of employment”. “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693 P.2d 708 (1985). “A sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim, in fact, did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S. Ct. 2275 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 S. Ct. 367 (1993); EEOC v. Prospect Airport Services, Inc., 621 F.3d 991, 998-1000 (9th Cir. 2010). Simple teasing, off-hand comments, and isolated incidents do not usually constitute a sufficiently hostile work environment. . Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S. Ct. 2275 (1998).

In the context of sexual orientation, one Washington court found that a single comment was enough, combined with the totality of the circumstances. In Loeffelholz, the plaintiff was an open lesbian and she filed a claim stating that her supervisor maintained a hostile work environment based on sexual orientation. The conduct included asking her about her sexual orientation, demanding that she not “flaunt” the sexual orientation around him, discussing his hatred toward others and thoughts of revenge, and discussing a gun he kept in his vehicle.  The supervisor told others that he was “proficient in using firearms, in killing people, in ‘getting people,’ in using ‘shock and awe,’ and in blood and gore.”  It was further alleged that the supervisor asked other employees for information on Loeffelholz so that he could fire her. The supervisor told other employees that he disliked Loeffelholz because she was gay and overweight. Shortly before the supervisor was deploying to Iraq, in a group meeting, the supervisor claimed he would “come back a very angry man”.  

The court found that although “a single act of harassment is rarely enough to establish a prima facie claim,” in unique circumstances when viewed together with other conduct, a single comment “could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Loeffelholz v. University of Washington, 175 Wash.2d 264, 277, 285 P.3d 854, 860 (2012). Therefore, the court must view the harassing behavior in context with all of the surrounding circumstances. Further, offensive comments do not all need to be made directly to an employee for a work environment to be considered hostile. See: Woods v. Graphic Commc’ns, 925 F.2d 1195, 1202 (9th Cir.1991). Thus, it can take very little to create a hostile work environment for purposes of the WLAD when looking at the whole picture.

When is the employer liable for third party sexual harassment?

Regarding the fourth element of the test, sexual harassment will be imputed, or attached  to the employer if “an owner, manager, partner or corporate officer personally participates.”  An employer will be responsible for harassment by the plaintiff’s supervisors or coworkers if the employer “(a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” A plaintiff can establish knowledge and failure to take adequate corrective action by showing (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of the employer’s knowledge or constructive knowledge of it and (b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.

A recent court case has underscored that workers have a right to be free from sexual harassment in the workplace, regardless of who the perpetrator is, even a customer. 

In 2019, the Division II Court of Appeals decided a groundbreaking case, LaRose v. King County. In LaRose, the victim was a public defender for Public Defenders Association (“PDA”) in King County. The PDA assigned her to represent a client a/k/a “Mr. Smith” on a charge of felony stalking. A prior PDA public defender had represented Smith on a felony stalking charge. After representation, Smith left her a voicemail that he was in love with her, so she requested that her supervisor allow her to withdraw and that a male attorney is appointed in substitution. Her request to withdraw was granted, but LaRose, a female, was appointed to represent Smith contrary to the previous attorney’s request. LaRose was not given any information about Smith’s history of stalking professional women or his interaction with the previous attorney and was not warned of any potential danger in representing him. 

During LaRose’s representation, Smith began to make repeated sexually motivated harassing phone calls to LaRose. He soon was calling LaRose 10 to 20 times a day and making more disturbing sexual and offensive comments. LaRose complained of this conduct to her supervisor and asked to be removed from the case. The calls got worse and LaRose continued to complain and reported to her supervisor that she was losing sleep. Finally, LaRose sought permission from the superior court to withdraw from the representation of Smith pursuant to PDA policy when Smith requested a motion to withdraw his guilty plea. LaRose was allowed to withdraw, but the harassment continued and LaRose continued to complain to her supervisor who declined to help. 

In its decision, the Court of Appeals decided that “a nonemployee’s harassment of an employee in the workplace will be imputed to an employer if the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” (Emphasis added). Therefore, the court concluded that LaRose had shown that the employer had knowledge of severe and pervasive sexual harassment and it also ruled that the Defendants failed to take remedial action in response to LaRose’s numerous complaints of such sexual harassment.

Several federal cases also hold that employers may be liable for hostile work environments caused by third parties such as customers and inmates. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002) (customer); see: Freitag v. Ayers, 469 F.3d 528 (9th Cir. 2006) (Department of Corrections could be liable under Title VII for failing to implement policies to protect female corrections officers from harassment by male prisoners). The Equal Employment Opportunity Commission Guidelines endorse this approach: “An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” 29 C.F.R. § 1604.11(e)

In order to be successful in these types of cases, the employee must show that the employer itself is “liable for the harassment that caused the hostile environment to exist.” Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006). Thus, the employer may be held liable for the third-party’s harassing conduct only to the extent that the employer failed reasonably to respond to the conduct, or to the extent that it ratified or acquiesced in it. See id. at 538; Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 755-56 (9th Cir. 1997). That is, the employer may be held to account for the third-party’s actions only if, after learning of the harassment, it failed to take prompt corrective measures that were “reasonably calculated to end the harassment.” Campbell v. Hawaii Dept. of Educ., 892 F.3d 1005 (9th Cir. 2018) (finding, among other things, that harassment by a student was reasonably addressed by the department of education and therefore not actionable). 

LaRose is a major legal stride to obliterate sexual harassment in all forms from the workplace, and to empower victims to report such misconduct in Washington State. The case stands for the important notion that if employers are aware of ANY sexual harassment of an employee by anyone in the workplace, whether a manager, a co-worker, or even a customer, that if they do not take prompt remedial action that is reasonably calculated to end the harassing behavior, that they can be sued for sexual harassment.

For the victims that are living in fear from reprisal or are trying to ignore the constant and egregious acts of sexual harassment by anyone, hopefully LaRose can set an example and lend courage for folks to make complaints in writing to their human resources professionals or management to end the unwanted sexual treatment in the workplace.

If you or someone you know is the victim of unwanted and egregious sexual harassment in the workplace, contact a lawyer that can help you to formalize a plan to correct unwanted sexual harassment, as it is your substantive right to be free from sexual harassment in the workplace.

Colin McHugh is an experienced plaintiff-side employment attorney and has represented individuals in Washington state, federal, and administrative courts in matters including but not limited to sexual harassment, discrimination, whistleblower claims, and more. For more information, go to his bio here. 

* Citations:

https://www.eeoc.gov/select-task-force-study-harassment-workplace

 Lilia M. Cortina and Jennifer L. Berdahl, Sexual Harassment in Organizations: A Decade of Research in Review, 1 THE SAGE HANDBOOK OF ORGANIZATIONAL BEHAVIOR 469, 469-96 (J. Barling & C. L. Cooper eds., 2008).