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'Immediate and Appropriate Corrective Action'

By Anthony B. Haller and Andrew B. Cohen

The employer's responsibility is to provide its employees with nondiscriminatory working conditions. The genesis of inequality matters not; what does matter is how the employer handles the problem. ' Judge Frank Easterbrook, Dunn v. Wash. County Hosp., 429 F.3d 689, 691 (7th Cir. 2005).

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).

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