Sexual harassment does not stop being workplace harassment because the harasser is a customer, a client, a patient, a vendor, a delivery driver, or an outside contractor. The employer’s duty to provide a workplace free of sexual harassment extends to the conduct of non-employees when the employer has some ability to affect the environment — which, in practice, means most of the time.
This category is legally straightforward and factually common. It shows up heavily in hospitality, restaurants and bars, retail, healthcare, home services, transportation, personal-service work, and any client-facing professional role.
The federal framework
Under Title VII, the EEOC’s regulations at 29 C.F.R. § 1604.11(e) state that an employer may be responsible for the acts of non-employees “with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” The regulation directs consideration of the employer’s control over the non-employee and any legal responsibility the employer has to that person.
Federal courts have consistently applied this framework. The Second Circuit in Summa v. Hofstra University, 708 F.3d 115 (2d Cir. 2013), held a university potentially liable for the sexual harassment of a football-team student manager by student athletes, on the ground that the university had substantial control over the environment and the actors. In Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014), the Fourth Circuit held that an employer’s failure to act on repeated complaints of harassment by a customer supported liability under Title VII.
The standard is essentially the same as for coworker harassment: knew or should have known, and failed to take prompt corrective action. What differs is what the “corrective action” can look like when the harasser is outside the organization.
The NYCHRL and NYSHRL
The New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(13)(e), expressly imposes employer liability for the sexual harassment of employees by non-employees where the employer or the employer’s agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action. The statute directs consideration of the extent of the employer’s control and any other legal responsibility over the non-employee. The NYCHRL has always been construed broadly under the 2005 Restoration Act and the 2016 Community Safety Act.
The New York State Human Rights Law, N.Y. Exec. Law § 296-d, was amended in 2019 to explicitly extend the NYSHRL’s protections against harassment to non-employees, including contractors, subcontractors, vendors, consultants, and persons providing services pursuant to a contract. The 2019 amendments also eliminated the “severe or pervasive” standard for state-law harassment claims, making the NYSHRL substantially more worker-protective than Title VII in this area.
The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., has been interpreted to reach non-employee harassment in the same way. New Jersey courts have applied the Lehmann framework — with the employer’s duty to remedy known harassment — to conduct by customers, clients, and other third parties.
What “corrective action” looks like against non-employees
When the harasser is a customer, client, or patient, the employer often protests that it “cannot control” what customers do. That argument does not carry the day. What the employer can do — and what the law requires — includes:
- Refusing to serve or banning the customer. Businesses have the right, and often the obligation, to refuse service to customers who sexually harass workers.
- Removing the worker from the interaction. Reassigning the worker off the harasser’s route, table, ward, unit, or account, without penalty to the worker’s pay, hours, tips, or advancement.
- Requiring accompaniment. Ensuring the worker is never alone with the harasser. Sending a second worker, a manager, or a security officer.
- Cutting the business relationship. Ending a contract with a vendor whose employees have been harassing workers. Declining the account of a client who has been sexually harassing a worker on the team.
- Reporting to law enforcement. For conduct that crosses into assault, stalking, or other criminal conduct.
- Documentation and training. Written policies specifically addressing customer and client harassment, and training that empowers workers to refuse service or leave the situation.
Employers that respond with “the customer is always right,” or that ask the worker to “tolerate it” or “handle it,” almost always create additional liability.
Industries where these cases arise
Restaurants and bars. Sexual harassment by patrons is pervasive. Employers who instruct servers and bartenders to “smile,” “flirt,” or “put up with it” — often to preserve tips or drive sales — have significant exposure. The New York State Restaurant Reopening Guidance and industry-specific model policies since 2018 have made this framework clearer.
Hospitality and hotels. Guests sexually harassing housekeeping, front-desk, and food-service workers. The 2019 NYC Local Law 105 requires hotels to provide employees with panic buttons and to protect workers from guest harassment. New Jersey adopted similar protections in 2019 under P.L. 2019, c. 264.
Healthcare. Patients harassing nurses, aides, technicians, and physicians. Employers cannot escape liability by invoking a patient’s medical condition, absent genuine medical justification. Providers with policies requiring workers to “manage” patient behavior at the expense of their own safety often face significant exposure.
Retail. Customers harassing sales associates, cashiers, and floor staff. Employer instructions to prioritize the customer relationship over the worker’s safety are often exhibits in these cases.
Home services and in-home care. Workers dispatched to residences where the homeowner or family member engages in sexual harassment. The employer’s response — often minimal, sometimes shifting the burden to the worker — is a common source of liability.
Transportation and delivery. Riders, passengers, and customers harassing drivers, dispatchers, and delivery workers. Ride-share and delivery-platform employers face particular scrutiny because of their control over the platform.
Professional services. Clients who sexually harass associates, junior consultants, or account managers. Employers often prioritize the client relationship. Retaliation for reporting these clients is common and separately actionable.
The retaliation overlay
The most common employer response to a complaint about a client or customer is to move the worker off the account, off the shift, or out of the role — with a corresponding hit to compensation, hours, tips, or opportunity. That response, framed as “protecting” the worker, can amount to unlawful retaliation under Title VII, the NYSHRL, the NYCHRL, and the NJLAD, depending on the extent of the adverse effect on the worker’s pay, hours, and opportunity.
The principle is that the complaining worker should not be worse off for having made the complaint. Where the employer’s “fix” reduces the worker’s pay or exposure to advancement rather than constraining the harasser, that is one of the facts a lawyer will want to evaluate.
Evidence in third-party cases
- The complaint record. Written reports to managers, HR, or a compliance hotline.
- The response record. Whether the customer was served again, whether the worker was moved, whether the vendor was retained.
- Prior complaints against the same non-employee. Discovery frequently produces prior complaints from other workers.
- Company policy. Whether the employer has a policy addressing third-party harassment, and whether that policy was followed.
- Communications. Emails or messages from managers instructing the worker to keep serving, keep smiling, keep the account, “don’t rock the boat.”
- Witnesses. Coworkers who observed the harasser’s conduct or who received similar treatment.
What to do
- Report each incident in writing. Do not leave the complaint verbal. A written report — email, HR portal, text to a supervisor — creates the notice the case will depend on.
- Ask for specific corrective action. Request that the customer be banned, that the account be reassigned, that a coworker accompany you, that the vendor be replaced. If the request is refused, note the refusal.
- Track pay and schedule changes that follow the complaint. A material loss of shifts, tables, tips, hours, or the account is one of the facts a lawyer will want to evaluate.
- Preserve documentation. Screenshots, emails, dated notes, witness names.
- Consult a lawyer before accepting reassignment or severance. Reassignments that look like accommodations sometimes include waivers.
If a customer, client, patient, vendor, or other non-employee has been sexually harassing you at work in New York or New Jersey and the employer has not stopped it, contact Fingerhut Law for a confidential consultation.
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