A recent sexually hostile work environment case, filed by the EEOC against retail giant Costco, addressed the question of whether an employee is protected against harassment by a customer, when that harassment occurs in the workplace.
The EEOC's allegations in EEOC v. Costco Wholesale Corp.
The EEOC filed a lawsuit in the Northern District of Illinois, on behalf of female employee, Dawn Suppo. The suit alleges that Costco subjected Suppo to a hostile work environment by allowing a customer, Thad Thompson, to harass and stalk her while she was on duty. The EEOC also alleged that Suppo was constructively discharged. Despite Costco's attempt to have the lawsuit dismissed early on, the court has allowed the case to proceed to trial, but only on the hostile environment claim.
Sexual harassment by a Costco customer
According to the Complaint, the customer (Thompson) first approached Suppo, telling her that he had not seen her in Costco before and did not know she worked there. He then asked her who the man was he had seen her shopping with at Costco, which was her father. Thompson joked that Suppo was stalking him by being in the store at the same time. Over the next few months, Thompson continued to interact with Suppo whenever he was shopping at the store. Suppo described the interactions as awkward and inappropriate. The last straw occurred when Suppo claims she caught Thompson videotaping her in the store. She then began taking off work because she was afraid of running into Thompson.
Costco's reactions to the alleged harassment
After Suppo obtained an Order of Protection from the court against the customer, she took a one year leave of absence, as allowed by Costco's policies. After an investigation, Costco told the customer that it was best that he no longer shopped at that particular warehouse. Sometime later, however, Suppo was shopping at a neighboring Costco and ran into Thompson who confronted Suppo and began yelling at her. At that point, Costco canceled his membership altogether. When Suppo was unable to return to work after her one-year leave of absence ended, she was terminated.
Did Costco take appropriate steps to stop the harassment?
In a hostile work environment case, the employer may be able to prove that it took "prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring," in order to avoid liability. In this case, there was a dispute as to whether Costco took any actions to stop the harassment. Not only did Suppo file two police reports against the customer, she and her father also complained to Costco management about the continued inappropriate interactions with this particular customer. Meanwhile, Costco claimed that they called Suppo to offer ways for her to return to work and feel safe, which she denies ever occurred. The case was allowed to proceed to the jury on this claim.
Constructive discharge claim failed for lack of resignation
In addition to the hostile work environment claim, the EEOC alleged that Suppo was constructively discharged by Costco. The problem is, Suppo never resigned. Instead, she took a leave of absence, from which she refused to return. In order to succeed on a constructive discharge claim, an employee must show "that she was forced to resign because her working conditions, from the standpoint of the reasonable employee, had become unbearable." This is a high burden to meet. The EEOC's argument that Suppo stopped working, which was tantamount to constructive discharge, was rejected by the court.
If you feel you have been the victim of harassment or discrimination, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Michel Allen & Sinor , either online or by calling us at (205) 265-1880.