RISKVUE ARCHIVE | FEATURE STORIES

How to Prevent Third-Party Harassment and Discrimination Claims

By Edward Piantek, Executive Risk

What can employers do to minimize the occurrence of potentially costly third-party liability lawsuits? Plenty. Keep in mind that courts want to see whether an employer took “immediate and appropriate corrective action” to remedy the situation. Courts will also want to see strong evidence that the employer takes sexual harassment and discrimination issues seriously and has taken steps to prevent their occurrence. Suggested preventive measures include, but are not limited to, the following:

Protecting against employees who sexually harass or discriminate against non-employees:

1. Educate employees on sexual harassment and discrimination issues, including training on appropriate and inappropriate behavior. Many companies already train employees on sexual harassment and discrimination as it relates to fellow employees, and should continue this education with a focus on non-employees.

2. Communicate the company’s sexual harassment and discrimination policy internally, and make sure employees understand it. Explain clearly that it applies to both employees and non-employees.

3. Establish a procedure for handling complaints from employees as well as non-employees.

4. When complaints from non-employees are received, investigate them immediately and thoroughly.

5. Implement adequate remedies to stop the sexual harassment or discrimination.

6. Protecting against non-employees who sexually harass or discriminate against employees:

7. Educate employees on sexual harassment and discrimination issues and how to discourage behavior by third parties before it gets out of hand.

8. Communicate the company’s sexual harassment and discrimination policy to outsiders. Post the policy where visitors can easily see it. Include a statement on your company letterhead, on your billing statements, etc.

9. Establish a procedure for handling complaints from employees about non-employee behavior.

10. When employees submit complaints about non-employee sexual harassment or discrimination, investigate them immediately and thoroughly.

11. Don’t punish employees who lodge complaints about non-employee sexual harassment or discrimination. This is considered retaliation, and it is illegal. Be aware that employees may perceive an action on the employer’s part as punishment, even if that was not the intention. Discharging an employee, for example, is an obvious retaliation. Less obvious are actions such as removing an employee from a project or moving an employee to a less-challenging job. While the employer’s intention may have been to protect the employee from the source of his or her complaint, the employee may see this type of action as punishment for making the complaint.Employers must be careful to send the right message—that is, that the company will support the employee, not that the employee must learn to cope with instances of sexual harassment or discrimination on his or her own.

12. Implement adequate remedies to stop any sexual harassment or discrimination by non-employees. Examples of solutions: Request that an offending salesperson be removed from your company’s account; send a warning letter to an offending vendor representative, and send a copy to the vendor company’s president (or simply stop doing business with the vendor).

13. Include indemnity provisions in contracts to shift the liability for third-party sexual harassment or discrimination to the vendor or customer. 

riskVue | The webzine for risk management professionals
May 1999