Oregon Law on Third Party Harassment and Discrimination
“An employer is liable for harassment by a non-employee if the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action. When evaluating a complaint, the Civil Rights Division considers how much control the employer has over the non-employee. For example, an employer is considered to have a great deal of control over an individual who is on the premises to fill a vending machine. An employer can call the vending company and request a different service person, can hire an alternate company, or can even have the machines removed. OAR 839-005-0030(7).”
“Civil Rights Laws, A Handbook for Oregon Employers,” BOLI (2012 Ed.), p. 68.
Federal Law on Third Party Harassment and Discrimination
In Freitag v. Ayers, 463 F.3d 528 (9th Cir. 2006), the Ninth Circuit Court of Appeals – which includes Oregon – held that the California Department of Corrections could be liable for the harassment of female correctional officers by male inmates:
“In the Ninth Circuit, employers are liable for harassing conduct by non-employees “where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.” Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir.1997); see also Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir.2002). In recognizing that employers may be liable for third-party conduct, we, along with several other circuits, see, e.g., Berry v. Delta Airlines, Inc., 260 F.3d 803, 811-12 (7th Cir.2001); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir.2001); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir.1997), have relied in part upon a regulation of the Equal Employment Opportunity Commission that provides that employers may be held liable for the acts of non-employees where the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” 29 C.F.R. § 1604.11(e). This theory of liability is grounded not in the harassing act itself – i.e., inmate misconduct – but rather on the employer's “negligence and ratification” of the harassment through its failure to take appropriate and reasonable responsive action. See Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir.2005).”
The principle that employers must protect employees from third party harassment was endorsed earlier this year by a federal trial court in Oregon. In Piety v. City of Sweet Home, No. 6:11-cv-6303-AA (D.Or. 2013), the court denied summary judgment to the employer where, “the harassing behavior came not from the employer or its employees, but essentially the customer, i.e., the park users [who used racial slurs and graffiti directed toward a mixed-race husband and wife caretakers of the park]. The City may be held liable for harassment on the part of private individuals where the City either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.”).
Actionable Harassment or Discrimination Is Typically Severe
Employer Awareness Is Key to Stating a Claim Involving Third Parties
If you believe that your employer has failed to provide a workplace free from harassment and discrimination by third parties, you should contact an Oregon employment lawyer to discuss your rights and remedies.