Is employer liable if employee is harassed by customer at work?

Jennifer Christian worked at Umpqua Bank as a Universal Associate. In late 2013, a male customer asked her to open a checking account. While this initial interaction was unremarkable, the customer soon began visiting the bank to drop off “small notes” for her, stating that Ms. Christian was “the most beautiful girl he'[d] seen” and that he “would like to go on a date” with her. She began to feel “concerned,” as did her colleagues. The lead supervisor advised her to “watch out … that it doesn’t escalate.”

When Ms. Christian next saw the customer at the bank, she told him, “I’m not going to go on a date with you.” He responded, “okay,” and left the bank. However, the  harassment continued over  seven months as he left several unwanted notes for her, harassed her co-workers about how to get a date with her, stalked her at a charity event, and appeared at her workplace for no business reason other than to stare at her.

Ms. Christian brought the matter to her supervisors every time the harasser struck. When the customer sent her flowers, she asked her manager to close the customer’s account and prohibit him from entering the premises.  According to Ms. Christian, the manager promised that he would not allow the customer to return. But he did not notify the customer. Instead, the manager asked that she herself call the customer. She felt uncomfortable but agreed to call because the manager “didn’t seem like he wanted to deal with it.”

Two supervisors advised Ms. Christian to “hide in the break room” whenever the customer came to the bank. Feeling unsafe, Ms. Christian requested a transfer to another branch even though it meant shorter hours and less pay. Although the bank closed (and then later re-opened) the customer’s account, and finally barred him from the bank, its inaction for several months after the initial harassment caused Ms. Christian severe anxiety, stress, and fear for her life and safety. The bank ultimately transferred her to another location. Ms. Christian resigned from her job following the advice of her doctor who declared that “it is bad for [her] health to continue working at Umpqua Bank.”

Ms. Christian sued the bank alleging gender discrimination and retaliation in violation of state and federal law. The bank asked the court to dismiss the case, arguing that the customer’s conduct was not severe or pervasive enough to create a hostile work environment; that the incidents did not involve “direct, personal interactions” between Ms. Christian and the customer; and that the bank did not ratify or acquiesce in the harassment. The district court agreed and dismissed the case. Ms. Christian appealed.

The appellate court reversed the dismissal. It found that the trial judge erred by disregarding the many incidents of harassment that contributed to the severity and pervasiveness that created the hostile work environment. The appellate court said the continuing pattern of harassment was not to be disregarded just because it happened over a long period of time, or because it did not involve direct interaction between victim and stalker, or that the stalker did not attempt to touch Ms. Christian physically. The court underscored that gender-based harassment, like any other form of harassment, need not involve physical or sexual touching in order to be actionable.

The appellate court also noted that a jury may find the bank had ratified the harassment by its inaction and failure to institute measures that would stop the harasser. The court noted that “Umpqua’s glacial response—more than half a year after the stalking began— was too little too late.” The bank’s response to Ms. Christian’s concerns (by repeatedly telling her to “hide in the break room” when the harasser was in the bank) was unreasonable because it placed the burden on Ms. Christian herself. The court noted that “harassment is to be remedied through actions targeted at the harasser, not at the victim.”

Title VII of the Civil Rights Act, a federal law, holds employers liable for the harassment of third parties if employers either ratify the conduct, or fail to take immediate and appropriate corrective action. Under California’s Fair Employment and Housing Act (FEHA), an employer is strictly liable for harassment by supervisors and is liable on a negligence theory for non-supervisory personnel and non-employees. Also, supervisors and non-supervisory employees can be held individually responsible for sexual harassment.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]