Death is No Defense Death is No Defense

Death is No Defense

The "customer" is always right: so goes the mantra in the service industry—except now, not so much at a Fred Meyer grocery store location in Oregon. Last month the EEOC dedicated its resources to further rein in sex harassment and sued the grocery retailer in federal court because of the conduct of one of the grocery store's customers. According to the EEOC's complaint, the store failed to protect three female employees from being groped by an elderly man who often "lurked near" the employee time clock awaiting his unwitting victims.

This case was also brought as a class action on behalf of similarly situated employees exposed to the octogenarian's antics which the EEOC maintains created a sexually hostile work environment. The EEOC alleges in this action that the offensive customer was "coming to the store daily and sometimes several times a day." As the women punched in or out on the time clock, he would give them unwanted hugs and "grope them." And when the females protested, "the customer would smirk or make comments." The customer, Paul Janac, pleaded guilty to criminal charges relating to his misconduct. Mr. Janac was 84 years old. The Grim Reaper took Mr. Janac in April of this year, but the EEOC nevertheless decided to mete out its own version of potential punishment by filing a class action lawsuit.

Lesson learned! An employer's affirmative obligation to stamp out harassment in its workplace does not stop with monitoring the conduct of its employees. This obligation extends to customers of the employer, not just its employees. The failure to fulfill this obligation may mean that the EEOC will pursue the wrongdoing of the Mr. Janac's of the world into the afterlife and beyond. And the employer—not the customer—will pay the price.

Mark W. Ford is a partner in the Labor and Employment Group of Ice Miller. His primary areas of practice are in employment discrimination matters, collective bargaining, arbitration and personnel advice. Mark can be reached at: (317) 236-2366 or mark.ford@icemiller.com.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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