Yes, courts have held that an employer may be found liable for the harassing conduct of its customers. The focus of the inquiry in a hostile work environment claim, as the name suggests, is on whether the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult Employers may be held liable in these circumstances if they “fail[ ] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 577 (10th Cir. 1990).
Similarly, the EEOC’s regulations on sexual harassment state that “[a]n employer may also 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.” 29 C.F.R. § 1604.11(e).
In 2017, a Delaware federal judge noted surveyed case authorities from various jurisdictions holding that “an employer is liable for the harassment of an employee by a non-employee when (1) the employer knows or should have known of the conduct and (2) fails to take immediate and appropriate corrective action. See, e.g., Johnson–Harris v. AmQuip Cranes Rental, LLC, 2015 WL 4113542, at *8 (E.D. Pa. July 8, 2015); see also Freeman v. Dai–Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014); Dunn v. Wash. Cty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005); Shatzer v. Rite Aid Corp., 2015 WL 4879450, at *6 (W.D. Pa. Aug. 14, 2015); Armstead v. Exec. Cleaning & Supply, Inc., 2014 WL 4659935, at *13 (M.D. Pa. Sept. 17, 2014); Mongelli v. Red Clay Consol. Sch. Dist. Bd. of Educ, 491 F. Supp. 2d 467, 477 (D. Del. 2007).” Poe-Smith v. Epic Health Servs., Inc., No. CV 16-660-LPS, 2017 WL 915139, at *3 (D. Del. Mar. 8, 2017)
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