By Joe Hunt
A customer at a members-only wholesale club frightened an employee with his constant attention. He asked personal questions, repeatedly asked her out and offered his phone number, touched her face while he asked about darkness under her eyes, tried to hug her twice, and filmed her with his cell phone. When she reported his attentions to her manager, the manager confronted the customer and told him to leave the employee alone. The manager did not ban the customer from the store or revoke his membership, and the harassment continued. The employee called the police and, after more than a year of frequent, unwelcome contact, obtained a restraining order, but the damage was done – the employee had to take unpaid leave because of the stress. Although the employee never returned from leave, the employer went on to ban the customer from the store where the employee had worked, and told her that her internal complaint was closed. When the employee ran into the customer at another store, he screamed profanity at her. Then, the employer canceled the customer’s membership.
Was the customer’s conduct harassment? The employer’s defense was that the customer’s conduct did not rise to the level of severe or pervasive, hostile conduct. A better defense would have been that the employer had taken effective measures to stop the customer’s conduct – if only that had been true. In fact, the employee won at trial on a claim for sexual harassment.
The same standard – severe or pervasive, hostile conduct – applies to both co-worker and customer harassment. Even conduct that is not lewd and offensive in and of itself might count as harassing – especially in the context of stalking. There was plenty of evidence that the employee was terrified by the customer’s conduct and that, by itself, should have been enough for the employer to act. Relying on a careful comparison of legal precedent was the last ditch, and the employer lost.