Most employers are equipped to respond to employee allegations of harassment by co-workers or managers. However, there are added levels of difficulty when employees complain of harassment by a customer, contractor or other visitor to the business. In Sansone v. Jazz Casino Company, LLC (Sept. 1, 2021), a federal court of appeals recently ruled that an employee of Harrah’s Casino can go to trial on her claims that she was sexually harassed by a customer and that Harrah’s did not take sufficient steps to address her concerns.

Facts of the Harrah’s Casino case

Christina Sansone was a dealer at a Harrah’s Casino in Louisiana. She alleges a customer made “sexually charged gestures, remarks about her appearance, and sexual propositions” to her at least two times a week over a series of months. She complained to her floor supervisors, but was told to ignore the behavior and that “this comes with the business.” Eventually, Sansone filed a written complaint with the casino. At that point, the casino attempted unsuccessfully to identify the customer from surveillance video and relieved Sansone from her table on the one occasion the customer reappeared there. Sansone was terminated shortly thereafter for unrelated reasons.

chips at casino representing where harassment by a customer occurred

Sansone filed in federal district court against Harrah’s alleging claims of Title VII retaliation, a hostile work environment, disability discrimination and related state law violations. The district court granted summary judgment to Harrah’s on all of Sansone’s claims. Sansone appealed that decision to the United States Court of Appeals for the Fifth Circuit. The court of appeals recently issued a decision in which it affirmed the dismissal of all of Sansone’s claims, except the hostile work environment claims.

Regarding the hostile work environment claim, the court found that a jury could conclude that the customer’s alleged conduct was sufficiently severe and pervasive to support a sex harassment claim. The court also found that a jury could conclude that Harrah’s failed to take sufficient action responding to the complaint. That finding was based largely on the employee’s allegation that she had complained to the floor supervision and no action had been taken as a result. The casino’s argument that the employee should take her claims directly to the human resources department was rejected by the court.

Takeaways from Sansone’s claim of harassment by a customer

The Sansone case illustrates some of the unique difficulties faced by employers responding to claims of harassment by customers or other non-employees.

  • These cases pose challenges in the investigation stage. Unlike managers or co-workers, customers often are not available for an interview by the employer in an investigation.
  • Customers and other third parties are not subject to clear written rules and stated expectations like those that typically regulate conduct in the workplace. It can be difficult to identify and control future conduct of customers who have improperly harassed employees.
  • Employees may be less likely to complain about customer conduct because of concerns that the employer will be unwilling to take action or even angered at the prospect of damaging customer relations. A concern about customer relations would be no defense for an employer’s failure to properly investigate and take action responding to a harassment claim. Even so, concerns about customer relations could have an impact on an employer’s willingness to give credence to an employee’s complaints, to investigate thoroughly, and to take prompt and effective action.

Limiting the risk of customer harassment

Despite these challenges for dealing with complaints of customer misconduct, there are some best practices for limiting the risk of customer harassment and for improving employer defenses if it occurs.

  • Examine your workplace policies prohibiting harassment and make certain they include harassment by anyone in the workplace, including customers, contractors and other visitors. Make certain that your policies encourage employees to complain of harassment by third parties, and that they assure a prompt investigation and appropriate corrective action. Stress these points during employee training about your workplace harassment policies.
  • When training managers, include the possibility of misconduct by customers and other third parties. Frontline supervision can be a valuable asset for preventing misconduct by customers and other visitors. Often, they are in a position for diplomatic intervention to prevent or de-escalate misconduct.
  • Make certain that managers are aware of their responsibilities to relay employee complaints about customer conduct to upper management and human resources, just as they are responsible to do so for similar conduct by co-workers.
  • When complaints about customer conduct do occur, make sure there is a prompt and thorough investigation. Document efforts to identify and, if necessary, contact the person complained about.

Attempting to prevent and dealing with complaints about customer or other third-party harassment can be a real challenge, particularly where credibility issues arise in the investigation.  Adopting a few common sense practices and policies can greatly improve the likelihood that the employer in this difficult circumstance will have a better defense.