There were some shocking revelations during the recent campaign cycle suggesting that our President-elect may not have clearly understood the difference between “appropriate’ and “inappropriate” behavior toward women. Putting aside that oddity, in the decades since the Supreme Court first recognized sexual harassment as a cause of action under Title VII in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), there has been a heightened awareness of acceptable workplace behavior and an employer’s obligation to monitor and respond to concerns in that regard.
When an employee raises concerns about harassment in the workplace, an employer is required to investigate the complaint and take prompt remedial action calculated to end the bad behavior. To be sure, most such interactions occur between employees – whether it’s a supervisor and a subordinate, or a couple of co-workers. Nevertheless, employers should not lose sight of the potential liability that exists when it’s a customer who is the alleged bad actor.
There are some settings where the risks of such a scenario may seem more plausible: at a gym or a theme restaurant (think Hooters). Costco would probably not be at the top of anyone’s list as a likely candidate. According to an Illinois jury, however, Costco’s failure to protect a female employee from sexual harassment by a male customer for more than one year entitled the employee to $250,000 in compensatory damages. EEOC v. Costco Wholesale Corp., No. 14-6553 (N.D. Ill. Judgment entered Dec.21, 2016).
Dawn Suppo, the employee, repeatedly complained to Costco managers about the male customer’s actions, which included unwelcome touchings and stalking. Believing that Costco had not taken the prompt remedial action necessary to address Suppo’s concerns, the EEOC took up her cause and filed suit.
“Costco repeatedly refused to take simple steps to prevent known harassment by a person it could easily ban from its stores, or direct to shop at a different store,” said an EEOC Trial Attorney. “An employer should not wait until an employee is so fearful that she resorts to seeking a restraining order before intervening against a customer. Employers should work diligently to ensure that all of its employees have a safe, harassment-free workplace.”
The eight-person Chicago jury unanimously found for the EEOC, rejecting Costco’s arguments that Suppo was unreasonably sensitive and that the harassment was not sufficiently sexual. Another EEOC attorney commented that it was troubling Costco’s response to the EEOC’s lawsuit was to attack the victim, including spending $125,000 on a psychiatric expert in an attempt to discredit the employee. “It is unfortunate that Costco chose to attack its employee rather than take responsibility for its inaction.” See https://www.eeoc.gov/eeoc/newsroom/release/12-22-16.cfm.
The take away here? It is always a challenge when a business has to confront a customer about the customer’s behavior. But addressing such an issue early on and supporting an employee – even if the employee seems to be “overly sensitive” is the right thing to do. And likely cheaper too.