Recently a drunken day of debauchery at an Atlanta golf club resulted in a letter to the club president (PDF) recounting a lowbrow version of Caddyshack-like antics (apologies to Caddyshack aficionados).
But these antics are also a stark reminder about concerns every employer should have when it comes to preventing hostile work environment claims arising out of harassment involving customers and clients.
“To alcohol! The cause of, and solution to, all of life’s problems.” Homer Simpson
According to the letter, the Piedmont Driving Club in Atlanta Georgia hosted a drunk-fest that at times involved golf – or some reasonable approximation. Some of the highlights low-lights reported include:
- A golfer playing the 14th hole “completely naked;”
- A golfer demonstrating his “skills” picking up golf balls with his “naked butt cheeks” (one misstep could make for a painful hole in one);
- A member passed out in the “men’s grill,” which prompted another member to reach into his pants, pulling out a certain club, and repeatedly slapping the passed out member over the head (an appalling abuse of Mr. Mulligan … and the passed golfer too);
- “One or more” of the members “deliberately” exposing themselves to a female caddie while urinating on the greens; and
- To cap off the day, several members “mooned” the attendees at a wedding rehearsal dinner that was taking place at this fine establishment.
Can an Employer be Held Liable for a Hostile Work Environment Created by Non-Employees?
Admittedly I chuckled at this retelling of a “fine” day of “golfing.” But unfortunately employers must take such antics like those described seriously because employers can and have been liable for harassment by non-employees, including customers.
Generally speaking, for an employer to be liable for such harassment, a plaintiff must show that the employer failed to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.
This sort of claim was recently litigated by the employee of a Michigan hospital. See Rawls v. Garden City Hosp., (E.D. Mich. Feb. 16, 2012). In this case, the employee claimed that patients and visitors created a hostile work environment by using racial slurs. The case, however, was dismissed in favor of the employer and in reaching this decision, the court specifically discussed the reasonable and immediate corrective action taken by the employer.
The EEOC and the Basics of Non-Employee Harassment
The Equal Employment Opportunity Commission’s offers the following administrative guidance on the issue of non-employee sexual harassment:
An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer, or its agent or supervisory employees, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
The EEOC guidance further notes that the Commission will consider the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of such non-employees when evaluating sexual harassment by non-employees.
Conclusion
While hopefully not to the degree involved in the above golf club example, everyone can probably recall an incident – whether it was at a golf course, an after hours reception, a customer appreciation outing, etc. – where an employee was put in the unfortunate position of experiencing less than respectable conduct.
And while employers almost always understand to some extent their potential liability for discriminating against their employees “because of” sex, including hostile work environment claims, employers may not appreciate they could be responsible for a hostile environment created by non-employees, such as customers.
In such cases, the key focus will often be on the extent the employer can take steps to control or minimize the harassment of its employees by customers and to what extent it took such steps.