Are Customers Always Right?

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© Ice Miller LLP © Ice Miller LLP

Employers who fail to protect employees from harassment by third parties in the workplace, such as patrons, vendors or clients, are inviting claims. Companies in industries with frequent customer interaction should carefully consider implementing policies to protect workers from guest harassment.

How does that work, you ask? I recently conducted “Respect in the Workplace” training at a restaurant/bar. One of the employees came up to me after and said: "We all get along fine. It's the customers that are the problem."

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The same problems could arise on construction sites with multiple employers. And, of course, the service industry is replete with examples of potentially vulnerable workers such as housekeepers, spa services providers, retail workers and the list goes on.

So, the 'problem' is a third group of people who employers do not control. And when that third group misbehaves, employers can face claims for ignoring workers' complaints of harassment. Under Title VII of the Civil Rights Act of 1964 and other employment laws, employers must create and maintain a harassment-free workplace, and that obligation extends to nonemployees and customers.

So, how can an employer proactively control that which seems uncontrollable? Employers can and should set rules for how their workers respond to mistreatment. Rule number one should be that workers are to report harassment when it occurs. To be effective, employees need to know to whom to report.

In addition, service industry employers should train their managers and supervisors to spot harassment. Particularly in industries like restaurants, where people often work side-by-side or in close proximity, such training can be effective.

Another option is to train all of your employees about intervening in a customer interaction when a co-worker asks, immediately followed by the relieved employee getting the manager or supervisor's involvement.

If workers report harassment, employers need to investigate. Ask workers for specific details, including what was said or done, for what amount of time and who else may have seen or heard it. Then, employers need to take action. This can mean confronting harassers, removing them or even calling the police. In addition, employers can issue no trespass notices to customers or direct them to shop or frequent a different location.

What an employer should not do is exacerbate a problem by taking an adverse action against the complaining employee, which could result in a retaliation claim. An employee who complains that a customer or another nonemployee is harassing her is engaged in protected activity. As a result, employers must refrain from making an adverse employment decision based on the employee's complaint, such as revising the employee's schedule to avoid the alleged harasser. For example, if a customer is harassing an employee who works the first shift, an employer should not transfer the employee to work evenings to try to limit interaction between the employer and alleged harasser, unless the employee expressly consents.

The bottom line is actions of customers or third parties can create a hostile work environment for your employees. In advance of an issue, consider and prepare for the steps to employ when a customer is not right.

For more information on employment law, contact Cathy Strauss, Tami Earnhart or another member of our Labor, Employment and Immigration Group

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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