Employers Liable for Workplace Harassment by Third Parties(Even from a Six-Year-Old)
Throughout their workday, employees often encounter a variety of non-employees. Depending on the organization, employees may interact with customers, clients, consultants, donors, visitors, interns, applicants, board members, and more. While employers do not have direct control over third parties, they can be liable under employment discrimination laws if they fail to take action to protect their employees from harassment.
Last year, a case before the Fourth Circuit raised the question of whether an employer's six-year-old grandson could create a hostile work environment for an employee. The plaintiff worked in the kitchen, where the manager's children (the manager being the employer's son) frequently gathered. One grandson repeatedly used racial slurs, referring to the plaintiff as the "n-word" on three occasions. In one incident, the child even hit and kicked the plaintiff after she refused to give him cupcakes. The child went on to say, "My daddy called you a lazy ass black n**** because you didn't come to work" (Chapman v. Oakland Living Ctr., Inc. (4th Cir. 2022) 48 F.4th 222, 226). The father alleged that he spanked the child as punishment. However, the child almost immediately repeated the racial slur. Consequently, the plaintiff quit and filed an action for constructive discharge, racial discrimination, and harassment.
I would like to highlight three significant holdings made by the court. Firstly, the court affirmed that even a child, especially one related to the employer and manager, can create a hostile work environment. Secondly, the court held that due to the abhorrent nature of the comments, a jury could reasonably find that the child’s offensive comments were severe or pervasive enough to alter the plaintiff's conditions of employment and create an abusive work environment. Thirdly, the court held that the defendant's failure to distribute a harassment and reporting policy could lead a jury to conclude that they were on constructive notice of the harassment, even though the plaintiff had not directly informed management of the offensive comments.
From this case, three crucial lessons emerge:
Any third party, including a child, can create a hostile work environment for an employee.
Employers must take immediate and effective action when they become aware of offensive behavior in the workplace, regardless of the source.
Employers are considered on constructive notice of harassment if they fail to distribute a harassment policy with clear instructions on reporting harassment.
The key takeaways for employers are to promptly address offensive behavior in the workplace, irrespective of its source, and ensure that employment policies are up to date and distributed to all employees.