From Seyfarth Shaw —
an employer may be liable for third-party, non-employees who create a hostile work environment if (a) the employer knew or should have known of the harassment; and (b) failed to take prompt remedial action reasonably calculated to end the harassment. While the U.S. Supreme Court has yet to decide this issue, the Fourth Circuit joins the Second, Eighth, Ninth, Tenth, and Eleventh Circuits in applying the negligence standard to third-party harassment claims under Title VII.
In light of these decisions, here a few key lessons employers can take to minimize their risk of third-party harassment claims:
• Avoid taking a “see no evil, hear no evil” approach to harassment complaints. Employers should have procedures in place to respond reasonably to complaints about harassing conduct in the workplace regardless of whether the bad actor is an employee or a third-party, i.e., a customer, independent contractor, or employee of vendors and suppliers.