Not Your Ordinary Haircut: Does Your Sexual Harassment Policy Prohibit Harassment by Contractors?

Harassment policy independent contractor

From the Library of Congress digital collection.

This photo came with the description: “One of a series of images of a man harassing a woman as he cuts her hair.” Tip: don’t try this at home.

There are (unfortunately) many ways to harass a woman, most without scissors. Harassment can be by supervisors or fellow employees, but sometimes it comes from independent contractors.

Your company has a sexual harassment policy. Does it prohibit harassment of employees by contractors and other non-employees?

It should. Federal law creates a claim for sexual harassment if the harassment is by another employee, especially a supervisor. But the path toward a sexual harassment claim against a company for conduct by its independent contractors is less obvious. A hostile work environment claim can be asserted if a company knows of — and permits — a work environment that includes harassment by contractors, but a company’s control over contractors and their actions is going to be more limited than its control over its employees.

Your policy should fill the gap.

By creating a policy that takes a stance against harassment by independent contractors and other third parties, your company enhances its position in the event of a claim. Plus, it’s the right thing to do. If you hear of such a claim, investigate it. You may need to do something about it. That may include terminating the relationship with the contractor.

The policy should also say that conduct may be in violation of company policy even if the conduct is not prohibited by law. In other words, you are not conceding that you can control what your contractors do, and you are not conceding that there’s a viable legal claim. But you are taking a position against harassing behavior as a matter of policy.

The caption at the bottom of the photo above is small, but it says, “Getting his hair banged.”  I haven’t the slightest idea what that means, but it sounds bad. I would prohibit that too.

© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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