When you think of sexual harassment, most people think of sexual conduct by co-workers or managers. Customers and vendors can sexually harass employees. Under Oregon and California law, employers owe their employees the duty to protect them from sexual harassment by customers and vendors. In a recent case in Colorado, a female pharmacist sued Walgreens (Judson v. Walgreens Co., 2021 BL 259968, D. Colo., No. 1:20-cv-00159) for failing to protect her from sexual harassment from older men. Her supervisor dismissed the customer behavior and even told the pharmacist to stop wearing dresses because it encouraged the customers’ conduct. The employer even offered Judson the opportunity to transfer to another location. The problem with this type of employer behavior is that it punishes the victim rather than the perpetrators. This case is ongoing in court, and no verdict has been handed down yet. Still, Walgreens lost their motion for summary judgment to have themselves dismissed from the case. The jury will now decide the facts.
Some states like California require employers to provide annual sexual harassment training (Cal. Govt. Code § 12950.1). In California, workers are protected from other employees, unpaid interns, volunteers, applicants, independent contractors, and customers or vendors (Cal. Govt. Code § 12940(j)(1)). California also restricts discrimination based on sexual identity. Oregon has similar statutes, and all states are protected by Title VII (42 USCA § 2000e).
What Should You Do If You Are Sexually Harassed?
1. Complain in writing to your Human Resources Department by email written from your personal email account, not a company account. Using your own email provides you with verification of your complaint with a date and time stamp.
2. Keep written documentation of specific details about the conduct by the person sexually harassing you. If you keep this information on an electronic device, make sure that the device does not belong to the company or is routinely backed up to the company server—the data could disappear. If you keep it on a phone or tablet, email it to your home email account to date and time
3. -stamp the information.
4. If the employer investigates, keep track of as much information as you can about: who is doing the investigation, who is interviewed, and what steps are taken to protect you. Ask for a copy of the results of the investigation.
5. Each state in the United States has a bureau of labor or a specific agency that handles complaints of discrimination. In Oregon, that is the Bureau of Labor and Industry (BOLI https://www.oregon.gov/boli). In California, it is Fair Employment and Housing (FEHA https://www.dfeh.ca.gov/employment ). You can do a Google search for your state’s agency. You can also file a claim with the Equal Employment Opportunity Commission (“EEOC” https://www.eeoc.gov/filing-charge-discrimination ).
6. If your employer is a government agency. You must protect your right to sue when or if the employer does not protect you. You MUST file a Tort Claim Notice (TCN), also called a Government Claims Notice (GCN), separately from any written complaint to a state agency like BOLI or FEHA. With governmental employers, you MUST file this TCN/GCN within 180 days of the most recent act of harassment. Once you file the TCN/GCN, you generally have one year to file a lawsuit. If you fail to file the TCN/GCN/EEOC complaints, you may be prevented from suing in state or federal court. States vary on whether you must also report to the state agency such as BOLI or FEHA. Consult a local employment attorney if you have questions.
If you have any questions, consult an employment attorney. Most employment attorneys provide an initial free consultation. If you do not know how to find an attorney, contact your local state bar association. Nearly every state has an attorney referral service.