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Burning a Customer Is Not the Appropriate Response to Harassment

By Fiona W. Ong - Shawe Rosenthal LLP

April 5, 2018

As a minority female, I have had my share of being harassed, and I have felt rage at the unfairness. I completely understand the desire to lash out at the harasser. But actually burning them with a cigarette? Well, that crosses the line (unless, of course, the harasser is threatening physical harm. Then, all bets – and gloves – are off!) But that’s what one employee did, and yet she was surprised when the employer fired her for it.

In Hales v. Casey’s Marketing Company, a male customer made a number of sexually suggestive comments to an 18-year old employee. Two police officers came into the store while this was occurring. Although the employee felt “annoyed and uncomfortable,” she did not say anything to the officers. After they left, she told a co-worker that she was going outside to smoke in order to avoid the customer, who was “hitting on her” and asked the co-worker to keep an eye on her. The co-worker (reasonably) asked why she was going outside if the customer was still in the store, and suggested that she just ask the customer to leave. The employee responded that she could take care of herself.

Unsurprisingly, the customer followed the employee outside and continued to make suggestive comments, while blocking the entrance to the store. The employee told him to back off, and he said “What are you going to do about it?” According to the employee, she held out her cigarette and the customer walked into it, burning his arm. (Huh. Really?) He recoiled and then reentered the store, followed by the employee. The employee did not report the incident to anyone.

The next day, the customer came back to the store and complained to the manager that the employee had burned him with her cigarette. The employee admitted doing it, claiming it was to defend herself. She was fired, and the sued the company, arguing that she had been sexually harassed in violation of Title VII. Specifically she claimed that the customer created a hostile work environment.

In order to bring a claim for hostile work environment, a plaintiff has to establish the the offensive conduct is severe or pervasive enough to alter the terms of the plaintiff’s employment. A single incident is enough if the conduct is sufficiently serious. But in this case, the U.S. Court of Appeals for the Eighth Circuit found that the employee didn’t meet this standard because the customer never touched or actually threatened the employee.

The employee also claimed that the company knew that the customer was a harasser but failed to take action. Apparently, he had made inappropriate comments to other female employees in the past – but when they complained, a male employee told the customer that, if he continued such behavior, he would be banned from the store and the police would be called. There were no other incidents until the current one. The court found that the company’s reaction to the prior complaint was appropriate, and the company had no reason to know that the customer would continue his bad behavior. Therefore, the employee’s claims went up in smoke!

What the court did not specifically address, but should be pretty obvious, is that the company had a legitimate reason for terminating the employee: burning a customer with a cigarette is really not acceptable behavior! But this offers an interesting lesson for employers in this #MeToo era – it may be wise to educate employees on how to deal with customer harassment.

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