We all know that sexual harassment is illegal in the workplace. Many of think that the perpetrators are bosses or co-workers. If you work in the service industry, however, you probably also think of customers. Workers dependent on tip income are especially vulnerable to harassment.
Can you sue your employer for sexual harassment or unwanted sexual touching by a customer? Keep reading to learn the answer.
Employers have a duty to keep workers safe. Legally, it doesn’t matter if you work in an office, construction site or Hooters restaurant. In fact, we believe that employers have a higher duty of protection if they know their workforce is likely to be harassed. There is also a higher duty to protect minors in the workplace. (How many of us still remember our first summer jobs? Chances are if you are female and worked as a lifeguard or server while in school you experienced or observed sexual harassment at work.)
Preventing Sexual Harassment by Customers
Preventing sexual harassment begins with good training. We can’t expect restaurants and stores to train every customer that walks through the door but we can educate staff on the law and how to seek help if they feel unsafe or harassed. This is especially important in restaurants and independent retailers where there is usually no HR department where workers can seek help.
Good training also includes how staff can set boundaries and walk away if a customer makes them feel uncomfortable. Let them know it is also okay to speak with a manager.
A Workplace Sexual Harassment Policy Doesn’t End with Training
Good training is only the beginning. Employers also have a duty to act when a worker complains or a manager sees inappropriate behavior by a customer.
Setting boundaries often works but if a customer doesn’t understand or won’t stop, its time for management to take decisive action. Unfortunately, we have encountered several situations where management is more concerned about the customer. That type behavior leads to lawsuits. It can also make for low morale among staff.
PNC Ordered to Pay Employee $2.4 Million for Assault by Customer
While no employer can foresee and prevent every incident of sexual harassment, they can be held liable for failing to act or creating an atmosphere conducive to bad behavior. In February 2020, a jury in Newark, New Jersey ordered PNC Bank to pay an employee $2.4 million after she was assaulted by a customer in PNC branch.
According to the employee’s sexual assault lawsuit, Patrick Pignatello was a customer in PNC’s Glen Ridge, New Jersey branch. The employee, who we will identify as Damara, said that Pignatello had a history of sexually harassing employees at the bank. He even reportedly harassed other customers. In other words, he allegedly acted like a pig. (We say allegedly because Pignatello died before his criminal or civil trial. His estate settled the civil case last year. Like all defendants, he is considered innocent until proven guilty.)
His behavior was so bad that one employee said he put his head in her breasts while she was at work. PNC says the branch manager tried to take action by asking him to leave but the jury didn’t think the bank did enough.
Damara says she and others didn’t report Pignatello because they didn’t believe the bank would take appropriate action. When he was asked to leave the bank allowed him to come back and took no action such as closing his account or making him transact business online or through the mail. She also said that workers were not provided training on how to deal with touchy feely customers.
Ultimately, one day as she was leaving the bank, Damara claims Pignatello said, “I offer full services and I am willing to please.” He then proceeded to grab her and push his penis against her buttocks.
Damara reported that incident and Pignatello was arrested. Even afterwards, however, the PNC didn’t bar him from Damara’s branch.
We remind readers that although arrested, Pignatello died before the lawsuit went to trial.
Prior to the trial, PNC claimed the assault never happened.
‘It is unfortunate that plaintiff’s counsel has chosen to brand an elderly customer, now deceased, as a sexual predator who allegedly sexually assaulted the plaintiff when that will not be established by the evidence, including a video of the interaction between the customer and plaintiff.”
Clearly the jury didn’t agree. Even after losing, PNC still denies the incident. According to Law360, PNC issued a statement saying, "PNC does not condone harassment of any kind. We have a long-standing history of providing a safe workplace for our employees, and robust policies and procedures to help ensure that we continue to do so. We are disappointed by the verdict, even though the jury expressly found that this was not a case where punitive damages were appropriate. We intend to appeal based on errors made by the court."
Even though PNC says it is going to appeal, Damara may seek additional damages. She is claiming that the bank failed to turn over security footage of the incident and should be assessed punitive damages for withholding evidence.
Employers Liable for Assaults and Harassment by Customers
The takeaway from this post is that employers can be held legally responsible for sexual harassment and sexual assaults by customers. Employers have a duty to train workers on how to recognize and deal with problem customers. Typically the first line of defense involves proper training and setting boundaries. When that doesn’t work, management has the duty to take affirmative steps to protect workers even if that means losing a customer.
If the employer fails to take action, injured or harassed workers may be entitled to monetary damages for lost wages and tips, future lost compensation, mental anguish and suffering and counseling or medical bills if appropriate.
No one should ever have to suffer sexual harassment, unwanted touching or being assaulted while at work. It doesn’t matter whether the wrongdoer is a manager, co-worker, vendor or customer. If it is sexual harassment you may have a duty to let your employer know and set proper boundaries. If the bad behavior involves sexual contact or an assault, there is no duty to warn. Some behavior is never acceptable under any circumstances.
If you been sexually harassed at work, visit our sexual harassment FAQ page. Ready to see if you have a case? Contact us online, by email [hidden email] or by phone 877-858-8018. All inquiries are kept strictly confidential.