'Immediate and Appropriate Corrective Action'

Most employers know of their obligation, under Title VII of the Civil Rights Act of 1964, to take immediate and appropriate corrective action to prevent harassment in the workplace. Some employers, however, may not be aware that this obligation extends to preventing harassment by non-employees, including, for example, customers, patients, and university students. The Equal Employment Opportunity Commission (EEOC) has issued non-binding guidelines dealing with the question of liability for harassment by non-employees. Under the EEOC's guidance, an employer is “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.” 29 C.F.R. ' 1604.11(e) (emphasis added).

Although the federal courts have been relatively slow to address employer liability based on the actions of non-employees, the Second Circuit Court of Appeals recently joined the other federal appellate courts that have adopted the EEOC's guidance. In Summa v. Hosftra University, 708 F.3d 115 (2d Cir. 2013), the Second Circuit held that an employer may be liable under Title VII for acts of harassment committed by non-employees where the employer has actual or constructive knowledge of the harassment and fails to take immediate and appropriate corrective action. The Second Circuit's decision is important in two respects. First, it adopts the EEOC's guidelines consistent with other federal appellate authority. Second, it helps clarify what constitutes “appropriate corrective action” in the case of harassment by non-employees.