New York City Courts Address Sexual Harassment by Customers, Clients, and Others

In order to assert a claim under New York City sexual harassment laws, a plaintiff must usually demonstrate that an employment relationship existed between the plaintiff and the defendant. When the plaintiff and the alleged harasser received paychecks from the same entity, establishing this relationship is straightforward. Many workplaces present a much more complicated picture, though. Businesses often use a complex system of outsourcing through contractors in an effort to cut costs. This can cause confusion with regard to liability. New York courts, fortunately, have ruled that the definition of “employer” is not very strict in claims under Title VII of the Civil Rights Act of 1964, which governs many New York City sexual harassment claims.

Employers may be liable for third-party sexual harassment, meaning harassment against an employee by someone other than a fellow employee, such as a contractor, customer, or client. If the employer was aware that harassment was occurring, and they failed to take reasonable actions to prevent it or remedy the situation, they may be held liable under Title VII. This is similar to the standard for a hostile work environment created by a co-worker or another employee who is not in a position of authority over a plaintiff. The alleged harasser might not have direct control over the plaintiff’s employment, but they still have the power to make the workplace unbearable.

A 1981 decision by the U.S. District Court for the Southern District of New York (SDNY) addressed this type of situation. The plaintiff was employed by a company that had a contract to provide property management services at a Manhattan office building, although there was some confusion as to the exact employment relationship. She worked as a lobby attendant, which partly involved “offer[ing] assistance and information to people entering the building and k[eeping] those who did not belong in the building from loitering.”

In 1976, the company directed its female lobby attendants to wear a “Bicentennial uniform,” which the plaintiff found to be “short and revealing on both sides.” She was nevertheless required to wear the uniform, resulting in “repeated harassment,” including “a number of sexual propositions and…lewd comments and gestures.” The court rejected arguments by the defendants over who was actually the plaintiff’s employer. It found that the requirement that female employees wear revealing uniforms constituted gender discrimination, and that the uniform “could reasonably be expected to subject [the plaintiff] to sexual harassment when worn on the job.”

The SDNY has cited this decision multiple times over the years in cases in which a plaintiff has alleged sexual harassment by one or more individuals who were not employed by the same entity. In 1992, the court denied a motion to dismiss a complaint based on the lack of a common employer between the plaintiff and the alleged harassers. The setting for this case was an office with insurance agents, who, while all affiliated with a major life insurance company, each operated their own separate businesses. The plaintiff was employed by one insurance agent and alleged harassment by various employees of other agents. The court held that this still constituted “employment” under Title VII. Other rulings have applied a similar analysis to a hospital and a construction site.

The experienced and knowledgeable employment attorneys at Phillips & Associates advocate for the rights of New York City employees, former employees, and job seekers, helping them assert sexual harassment claims under municipal, state, and federal laws. To schedule a free and confidential consultation to see how we can help you, contact us today online or at (212) 248-7431.

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