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Employer Escapes Liability For Customer Sexual Harassment Of Employee

Earlier this week, a federal court in Oklahoma found that a former delivery driver for an auto parts store could not succeed on her sexual harassment claim based on a store customer’s conduct.  Paden v. O’Reilly Auto. Stores, Inc., No. 4:2017-cv-00621 (N.D. Okla. Feb. 19, 2019).

Paden began delivering auto parts for O’Reilly in March 2015.  When Paden met Henry, a delivery customer, harassment ensued.  Henry stated, “I can handle seeing that every day” and continued to make similar comments during Paden’s employment, such as “does your husband please you?” and “are you being satisfied at home? Because I’m sure I can do a better job.”  Henry told Paden that he would intentionally forget an item so that he could “watch [her] walk away again.”

In November 2015, Paden asked Henry to stop making inappropriate comments.  Paden also informed her manager, Hackler, about Henry’s “comments daily.”  She did not, however, mention that she was uncomfortable delivering to Henry.  Henry continued his harassing conduct, including by coming to Paden’s store and commenting that she “looked sexy” and that he would leave parts there so that “she could bring them to him later.”

In February 2016, Henry approached Paden from behind and grabbed her inner thigh.  Paden reported the incident to Hackler, another store manager, and the district manager.  The managers investigated and concluded that Paden should be transferred to another store.  Paden instead resigned, citing the increased commute time as too problematic for her.  She sued O’Reilly for sexual harassment and other claims.

Under Title VII, employers are liable for workplace harassment committed by non-employees over whom employers have control, such as a customer on an employer’s premises.  The court here first found that Paden did not adequately inform O’Reilly of Henry’s sexual harassment until February 2016, despite her earlier complaints to coworkers that Henry was harassing her and the “vague” statement to Hackler that Henry made “comments daily.”  The court was satisfied that O’Reilly undertook a timely investigation of Paden’s complaint.  It also found that the proposed transfer, which Paden rejected, was an appropriate response to Paden’s sexual harassment report because it would have removed her from contact with Henry.

While a win for the employer here, Paden’s case nonetheless demonstrates the sensitivity with which employers must treat all reports of workplace sexual harassment.  It is an important reminder that the obligation to investigate and remedy workplace harassment extends to an employer’s customers and clients.

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