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Non-Worker Harassment Remedies Still Elude Employers

Law 360—Ben James

The Second Circuit recently broke new ground by embracing U.S. Equal Employment Opportunity Commission rules on harassment of a worker by a nonemployee, in an opinion that lawyers say provides some guidance but leaves questions for courts and employers about what remedial action is necessary to escape liability for third-party harassment.

In a case against Hofstra University, the Second Circuit nixed harassment claims brought by Lauren Summa, a former graduate student and football team manager who claimed she was the target of an insulting Facebook page and lewd behavior on a bus ride returning from a game. In doing so, it adopted for the first time the EEOC's rules on harassment by nonemployees.

The Feb. 21 ruling affirmed a lower court's dismissal, concluding that the school and its personnel couldn't be held liable for the student football players' alleged harassment because they took the "needed remedial action."

“There was an open issue in the circuit about what standard was supposed to apply to third-party harassment, and the circuit has now answered that,” said Douglas Wigdor of Thompson Wigdor LLP, which represents Summa.

Though the ruling answers that legal question, how the standard should be interpreted is an issue courts and employers will have to tackle going forward, he added.

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But while the opinion offers employers some guidance on how to avoid liability for third-party harassment, lawyers say it will be up to lower courts and employers to figure out how to apply the broad lessons from the Summa decision in cases that present different factual circumstances.

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Akin Gump Strauss Hauer & Feld LLP's Nathan Oleson pointed out that the relationship between a university and a student is similar to the relationship between an employer and an employee, because the school has some control over its students.

The issue of what constitutes an appropriate response becomes murkier when the alleged harasser is a customer or someone else over whom the employer doesn't have much control, aside from the power of persuasion, Oleson said.

“There's going to be situations under this rule where it's going to be very difficult and uncomfortable for the employer to take action,” Oleson said. “It's always difficult to have conversations with a customer about inappropriate behavior, but they may have to happen.”

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Even though the Second Circuit has now explicitly said that employers may be liable for a nonemployee's harassment of a worker, lawyers said they didn't expect the decision to lead to a spike in new third-party harassment claims.

And while the appeals court noted that it had never previously addressed the standards for dealing with third-party harassment, its conclusion to adopt the EEOC rules largely confirmed expectations. 

“It certainly puts the Second Circuit in line with the wide consensus,” said Outten & Golden LLP's Paul W. Mollica. “Most employers probably already assumed third-party harassment claims were covered.”