From JDSupra, Brett Anders and Carlyle Edwards-Balfour discuss a recent case in which an employer was liable for the actions of a non-employee. Companies that engage with independent contractors should be aware that they might be liable if their actions constitute harassment. Brett and Carlyle write:
The court dismissed all claims except the claims of: (1) hostile work environment against BS Transportation under Title VII and the PHRA; and (2) aiding and abetting against the owner of BS Transportation.
With regard to the hostile work environment claims, the court found that an employer may be held liable “where the employer (or its agents or supervisory employees) know or should have known of the conduct and fails to take immediate and appropriate corrective action.” Hewitt’s allegations that his manager failed to investigate his complaint of sexual harassment by the third-party employee or notify third-party management of his continued complaints, at this stage of the litigation, was sufficient to withstand a motion to dismiss.
Similarly, with regard to the aiding and abetting claim, the court found that the BS Transportation manager’s failure to notify the third-party’s management of Hewitt’s continued complaints allowed the court to make a reasonable inference that the manager failed to take prompt remedial action against the discrimination.
Lesson for employers: Even if the harassment is coming from a non-employee of the company, complaints of a hostile work environment (or any type of discrimination) must be addressed immediately and, if warranted, appropriate corrective action taken. Where an employer knows or should have known about the existence of a hostile work environment and fails to address it, both the company and individual managers may be liable.