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Employers May Be Liable For Sexual Harassment By Nonemployees:
An April 2013 case provides insight into an employer’s liability for sexual harassment by nonemployees. The case comes out of Puerto Rico and was brought by a detention officer working for a private contractor. The employee alleged that while she was moving a prisoner, a government customs officer grabbed and kissed her. The following day, the employee revealed to her employer for the first time that the customs agent had made inappropriate comments on prior occasions. The employer took steps to prevent the two from coming into contact in the future and the offending customs officer was reassigned shortly thereafter.

Title VII prohibits, among other things, sex-based discrimination that changes the terms or conditions of employment. Sexual harassment is a form of sex discrimination, the Supreme Court tells us by committing or tolerating sexual harassment against an employee, an employer has effectively altered the terms or conditions of the victim's job.

One type of sexual harassment involves bothersome attentions or sexual remarks so severe or pervasive that they create a hostile work environment.

Employers must provide their personnel with a harassment-free workplace and they may be on the hook for a nonemployee's sexually-harassing behavior under certain conditions — one of which being that they knew or should have known about the harassment and yet failed to take prompt steps to stop it. In this case, however, the employee had not placed her employer on notice prior to the kissing incident and the employer took prompt action once on notice. Accordingly, the employer was not liable.

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