The Customer is Not Always Right: Sex Museums and Harassment

New York City’s Museum of Sex (“the Museum”) is facing a lawsuit from a former employee who alleges that the Museum failed to protect her from sexual harassment by her co-workers and the Museum’s patrons.  The plaintiff’s complaint alleges that “[p]atrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives. The Museum has done nothing to discourage this behavior, despite numerous complaints.” In fact, the plaintiff alleges that when she complained to management about the mistreatment, she was told the conditions were “the nature of the establishment.”

While few employers run a “sex museum,” many employers may want to take notice of the Museum’s plight. Under Title VII of the Civil Rights Act of 1964, employers are responsible for keeping the workplace free from harassment and discrimination by employees, as well as non-employees (yes, even customers!), so long as the employer has control over the persons and knew or should have known about the discriminatory conduct.  The Equal Employment Opportunity Commission’s guidance on this issue is clear: “The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”  This means that an employer may not avoid liability merely because a customer, rather than an employee, subjects an employee to unwelcome harassment.  Instead, once an employer knows of the sexual harassment, the employer should consider acting in a way that is reasonably designed to end the complained-of behavior. Ultimately, an employer may want to refrain from permitting a customer to sexually harass its employees, even if the customer is usually—but not always—right.

 

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