Court Condemns Employer’s Attempt to Place the Burden of Responding to Customer Harassment on the Employee
A recent case provides a good reminder to employers that their response to an employee’s complaint of harassment must be prompt as well as effective – and that directing the employee to address the harasser herself is not appropriate.
In Christian v. Umpqua Bank, the employee complained of being stalked (e.g. unwanted letters, flowers, watching, comments about her to her colleagues) by a customer. The customer was eventually barred from the bank and his account closed. The employee sued for harassment, but the federal district court threw out the employee’s claims, in part on its determination that the employer had responded promptly and effectively to the employee’s complaint.
The U.S. Court of Appeals for the Ninth Circuit, however, found that there were questions as to whether the employer took prompt, appropriate and effective actions. It noted that, although the employer allegedly decided not to permit the harasser to return to the bank, it did not actually inform him of that decision for many months. Moreover, the Ninth Circuit noted that the employer failed to take any other action to end the harassment, such as creating a safety plan for the employee, securing a no-trespassing order, or discussing the situation with security or Human Resources. As the Ninth Circuit flatly stated, “Inaction is not a remedy reasonably calculated to end the harassment, and we refuse to make liability for ratification of past harassment turn on the fortuity of whether the harasser . . . voluntarily elects to cease his activities.” Although the harasser was eventually told not to return and his account closed, this occurred more than a half-year after the stalking began, which the Ninth Circuit found to be “glacial.”
The Ninth Circuit also rejected the employer’s attempts to place the burden of stopping the harassment on the employee. With regard to the employer’s argument that the employee had volunteered to call the harasser, it stated, “we refuse to accept the notion that a victim’s own actions immunize her employer from liability for ongoing harassment.” And it found “unreasonable” the employee’s managers repeatedly suggested that she hide from the harasser in the bathroom.
The lesson from this case is that employers should be proactive and prompt in addressing employee concerns about harassment, and that employees should not be tasked with addressing the harassment themselves – particularly if such efforts prove to be ineffective.