The Customer is Not Always Right…

Most employers understand Title VII’s requirement to provide a workplace free of unlawful harassment and discrimination. Some employers may not be aware that this obligation extends beyond co-workers’ harassment to include customers’ mistreatment of employees. Recently a situation arose on an Alaska Airlines flight that demonstrated how this obligation to provide a workplace free of unlawful harassment and discrimination extends to customers.  During a female flight attendant’s life-vest demonstration, a male passenger yelled, “ooh, sexy.” When asked by the flight attendant to be respectful, the passenger responded “C’mon, I’m just playing with you.” Shortly thereafter, Alaska Airlines required the passenger to leave the plane.

When an employer becomes aware of harassment on the basis of a legally protected characteristic (sex, disability, religion, race, color, etc.), the employer is required to take prompt remedial action to protect its employees – even if the harasser is a customer.

It should be noted that despite the offensive nature of the passenger’s conduct, that conduct alone would not constitute sexual harassment creating liability for the employer. However, when combined with other conduct the flight attendant might face (from anyone, that day or over time), failure to act in the employee’s defense could certainly give rise to a harassment claim and employer liability. The EEOC advises, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.”

For harassing and offensive conduct to rise to the level of unlawful harassment (sexual harassment, racial harassment, etc.), the conduct must relate to a protected characteristic or conduct, and enduring the conduct must become, expressly or impliedly, a condition of employment or be so severe or pervasive that a reasonable person would consider the work environment to be intimidating, hostile, or abusive. The law also protects employees from retaliation relating to complaints and investigations.

Defending these claims is expensive. More and more employers are stepping in earlier to prevent them altogether. In this case, Alaska Airlines made a strong statement in favor of protecting employees, dissuading future conduct of this type, and prevented future claims. When the situation is not as time-sensitive, a quick call to an employment lawyer may help employers frame a diplomatic approach that fully protects the employee and prevents harassment.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628