Legal Memorandum: Employer's Liability for Sexual Harassment

Issue: Can a defendant be held liable for sex discrimination based on a hostile work environment caused by non-employees in Iowa?

29 C.F.R. § 1604.11(e) (“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.  In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.”).

Royer v. City of Oak Grove, 374 F.3d 685 (8^th Cir. 2004) (“[W]e note that under applicable federal law, an employer must take a sexual harassment complaint seriously for if it fails to act appropriately, it may face liability even where the harasser was a customer or unrelated third party.  See 29 C.F.R. § 1604.11(e)”).

Crist v. Focus Homes, 122 F.3d 1107 (8^th Cir. 1997) (Employer could be liable for sexual harassment if the facts show that it failed to appropriately control mental hospital patient’s harassment toward female employees.).

EEOC v. Cromer Food Servs., Inc., No. 10-1476, 10-1552, 2011 U.S. App. LEXIS 4279 (4^th Cir. Mar. 3, 2011) (Employer can be liable under Title VII where it failed to take action to protect employee from persistent harassment by employer’s largest client.).

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