United States: The Customer Is Not Always Right: The Dangers Of Third-Party Harassment Claims

Like most in the hospitality industry, you are constantly balancing many competing demands. At any given moment, you could be focusing on managing staff performance. Or perhaps you are reviewing your employment policies to see if they are legal, or checking your website to ensure it complies with accessibility requirements. All the while, you are maintaining your laser focus on guest service and satisfaction. But what happens when the very guests whose demands you are satisfying without hesitation or question take an inappropriate interest in your employees, or worse, harass them? Do you have to be the one to address the harassment?

A recent decision in a case from Michigan is a cautionary tale about these situations, commonly known as "third-party harassment" in the legal world. Hospitality employers would do well to review the allegations raised in this case, and the ultimate outcome, in order to avoid a similar fate at your own establishment.

Love-Sick Guest Couldn't Keep His Hands To Himself

Red Olive is a chain of family restaurants with 14 locations throughout Michigan. In January 2013, the St. Clair Shores location (in a Detroit suburb) hired a new waitress named Olivia Thompson. The following allegations are all taken from Ms. Thompson's lawsuit and her testimony during the discovery process. Shortly after she began working at the restaurant, she claims that a male diner in his late 60s or early 70s named "Lee" began to frequent the restaurant and express his unwelcome affection for Ms. Thompson.

Lee knew Ms. Thompson from her prior service at another restaurant in the area, where he was a "persistent problem" for her. At that prior restaurant, he made comments to her about her "great body" and how he wanted to please her, and even touched her once on her behind. At that time, Ms. Thompson reported the conduct to her then-supervisor, who informed the customer that his behavior was inappropriate. That supervisor told Lee that he would be asked to leave and not return if he could not control himself.

When Lee found out Ms. Thompson was now working at Red Olive, he began visiting her there. At first he was cordial and friendly, but his conduct soon became problematic for her. Just as before, Lee brought her flowers and cards and even began making inappropriate comments about her body and his lustful interest in her. When his behavior finally escalated to inappropriate and unwelcomed touching, Ms. Thompson went straight to her new manager and asked for help. Unfortunately for her, the restaurant manager simply laughed in her face and refused to take any action against the older male diner. 

The final straw for Ms. Thompson came one day in July 2013 when, in front of the manager, the love-sick diner approached her from behind, biting her and kissing her on the neck. What did the manager do? Nothing but laugh at the older man. Seeing that her manager was not going to protect her from him, the young waitress resorted to complaining to the restaurant's owners. Shortly thereafter, she was fired from Red Olive.

Judge: The Jury Will Sort This Out

Ms. Thompson sued Red Olive and claimed that she was the victim of a hostile work environment because of the customer's conduct. She also alleged that she was fired in retaliation for complaining about it. Red Olive denied that the conduct alleged by Ms. Thompson occurred the way she claims, and after two years of litigating the matter, the employer asked the judge to toss the case. The federal judge who heard the arguments made short work of denying the restaurant's attempt to get the case thrown out and scheduled the case for a jury trial. 

In his decision, issued on April 22, 2016, the judge touched upon the fact that the harassing diner had previously harassed the young waitress at her prior employer. But, he pointed out, unlike her manager at Red Olive, her former supervisor handled the situation appropriately. The judge contrasted the management exhibited at the prior restaurant – actually confronting the diner, telling him that his behavior was inappropriate, and explaining that he would be banned from the restaurant if he could not control himself – with the irresponsible conduct displayed by the managers at Red Olive.

Third-Party Harassment: Just As Important As Coworker Harassment

Most employers are aware that they must prevent workplace harassment by coworkers and supervisors, and that harassment is a form of employment discrimination in violation of federal and state laws. But what the Red Olive case reminds us is that federal law also requires employers to prevent harassment at work from nonemployees, or third parties.

The kinds of harassment prohibited by federal law can be based on the employee's sex, race, religion, national origin, age, or disability. And, in a growing number of state and local jurisdictions, it can be based on sexual orientation, gender identity, or a number of other protected categories. 

Prohibited conduct can include offensive jokes, touching, slurs, threats, ridicule, and other bad behavior that is offensive and interferes with the employee's ability to perform his or her job. This is not a new standard, and most employers have sound policies warning supervisors and coworkers that this kind of behavior is inappropriate. Many legally compliant policies also include descriptions explaining to workers how they should identify and report this behavior.

However, most policies do not encompass circumstances where the harasser is not an employee. This can be a particular problem for hospitality employers, especially because federal law does not care whether the harasser is your employee or some third party.

How You Can Avoid This Same Fate

So how do you guard against liability for third-party harassment? The first step is easy and you probably already do it: recognize that you have an obligation to prevent harassment in the workplace from any source. This is not new; in fact, the Equal Employment Opportunity Commission (EEOC) has issued regulations regarding third-party harassment going as far back as 1997. 

Since it started being tracked, third-party harassment is almost as common as harassment caused by employees. And so are the lawsuits. Over the years, plaintiffs have brought cases alleging third-party harassment by customers, agents, contractors, relatives, inmates, and even, in one particular unique circumstance, a foul-mouthed parrot who repeatedly shouted vulgarities in a long-term care facility. Given the current focus on gender identity and transgender bathroom use, you would be wise to be on the lookout for harassment against employees in these categories, including in your public restrooms. 

The second step is to review your employment policies and training on harassment prevention to make sure that they are not limited to your employees. You should include information in your policies and train your staff on how to report and address harassment from any source, specifically indicating that you prohibit third-party harassment and want to hear about it if it occurs.

The third and final step, as with any occurrence of harassment, is to follow the well-worn path you should know very well by now: take all complaints seriously, do not retaliate against anyone who makes a complaint, investigate complaints fully, and take reasonable and timely action to correct any harassment. And once you have done this, follow up with your employee to make sure your action worked and actually stopped the harassment. 

A Tale Of Two Supervisors

If you are in a third-party harassment situation and you are not sure how to react, just remember the lesson taught by Red Olive, the tale of two supervisors. The first one listened to the waitress' concern and took immediate and firm action to prevent any further harassment.  Although that supervisor may have been concerned about confronting a guest, his response solved the problem with little cost or effort. 

The second supervisor, however, listened to the waitress' concern, but simply laughed it off. As a result, Red Olive was slapped with a lawsuit. Instead of being able to focus solely on serving its diners, the restaurant is now distracted by litigation and all that comes with it – disruptions to management and staff, negative publicity, and the cost of attorneys' fees. To make matters worse, the restaurant is now facing a jury trial. The choice is clear about which path you should take to avoid liability and maintain your focus on guest service and satisfaction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.