Is My Employer Responsible If a Customer or Client Harasses Me?

Servers, bartenders, nurses, retail workers, rideshare and delivery drivers, sales reps, and hotel staff deal with the public all day. When a regular customer won't stop commenting on your body, or a client keeps touching you during meetings, it can feel like nobody is in charge of stopping it. Your employer is.

What does California law say about harassment by non-employees?

California's Fair Employment and Housing Act (FEHA) says an employer "may also be responsible for the acts of nonemployees, with respect to harassment of employees" in the workplace, "if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action" (Gov. Code § 12940(j)(1)).

The state's harassment regulations say the same thing about sexual harassment specifically: an employer "is liable for the sexually harassing conduct of nonemployees towards its own employees" when it knew or should have known and failed to act (Cal. Code Regs., tit. 2, § 11034(f)(2)(C)3.). The California Civil Rights Department's sexual harassment fact sheet gives a client or customer as its example of a non-employee harasser (CRD Sexual Harassment Fact Sheet).

Federal law follows the same rule. An EEOC regulation says an employer "may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace" under the same knew-or-should-have-known test (29 C.F.R. § 1604.11(e)). The EEOC's harassment page uses "customers on the premises" as an example of non-employees an employer can control (EEOC, "Harassment").

Who counts as a "non-employee"?

Anyone you deal with at work who isn't on your employer's payroll. That includes customers, clients, patients, residents of a care facility, vendors, delivery drivers from another company, guests at a hotel or event, and contractors working on site.

The California Supreme Court applied this rule to a nurse at a state veterans home who was harassed by a resident of the facility. The court held that the nonemployee language added to FEHA in 2003 "merely clarified existing law," so it applied to her case too (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914). In other words, employers have been on notice for a long time.

When is my employer responsible?

Two things usually decide it.

1. Did your employer know, or should it have known? Telling a supervisor or manager counts. So does harassment that happens in front of a manager, or a customer whose behavior is an open secret among staff. The law covers what your employer "should have known," so a company can't escape responsibility by looking the other way.

2. Did it take immediate and appropriate corrective action? The response has to match the problem and actually stop it. Depending on the situation, that can mean banning the customer, reassigning the account to someone else, refusing to seat or serve the person, having security step in, or calling the police for threats or touching.

In customer cases, the law also considers "the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees" (Gov. Code § 12940(j)(1)). A restaurant can refuse to serve someone. A company can drop a client. A hospital has fewer options with a patient who needs care, but it can still change assignments, add a second staff member, or set rules for the patient's behavior. The question is whether your employer used the control it had.

Does the harassment have to come from a supervisor to count?

No. Harassment by a supervisor is treated more strictly: the regulations make an employer "strictly liable" for its supervisors' harassing conduct, whether or not it knew (Cal. Code Regs., tit. 2, § 11034(f)(2)(C)1.). Harassment by a coworker or a customer works on the knew-or-should-have-known rule described above. Both are illegal if your employer fails to act.

FEHA also requires employers to take "all reasonable steps necessary to prevent discrimination and harassment from occurring" (Gov. Code § 12940(k)). The regulations say an employer's written harassment policy must state that the law prohibits "coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact" from harassing employees (Cal. Code Regs., tit. 2, § 11023(b)(3)). If your employee handbook only talks about coworkers, that's worth noticing.

What if my manager tells me to "just deal with it" because the client brings in money?

That's the situation the law is written for. Your employer doesn't get to trade your safety for a sale, a tip, or a contract. Being told to smile through it, keep serving the customer, or keep the account after you've reported harassment can be evidence that your employer failed to take appropriate action.

You also can't be punished for speaking up. FEHA makes it illegal to fire, demote, or otherwise retaliate against you because you opposed harassment or complained about it (Gov. Code § 12940(h)). If your hours get cut or you lose your best section after you report a customer, read our guide on retaliation after reporting harassment.

What should I do if a customer or client is harassing me?

1. Tell a manager, and put it in writing. A short email or text after a verbal report creates a record that your employer knew. Our guide on how to report sexual harassment at work walks through how.
2. Write down each incident. The date, time, what the person said or did, and who saw it. Note the customer's name, account, table, or room number if you know it.
3. Save what you can. Messages, emails, voicemails, and social media contact from the customer or client.
4. Track your employer's response. Write down what your manager said and did, and whether the harassment continued afterward.
5. Watch the deadline. FEHA claims have filing deadlines. Our guide on how long you have to file a sexual harassment claim explains them.

If you're ever in physical danger, get to safety and call 911 first.

The bottom line

Harassment doesn't become acceptable because it comes from someone who pays the bills. If a customer, client, or patient is harassing you and your employer knows about it, your employer has to act. If it won't, write everything down and get advice about your options.

This article is general information about California and federal law as of its date, not legal advice for your situation. Laws change, and the right move depends on your facts.