If a Contractor Makes Sexual Advances Toward an Employee, Who is Liable?

You’re working your job when a contractor, hired by your company, makes inappropriate sexual advances.

You’re uncomfortable. But you’re not sure what to do.

Maybe it’s a situation where the contractor is a consultant who is friends with your boss. Perhaps the contractor is a significant referral source that your company relies on, and you worry about the financial consequences for your company if you do anything.

If the harassment were from another employee in your company, you know that human resources would want you to report it. Your complaint would then be investigated. The proper steps would be taken. Hopefully, the sexual harassment stops. Perhaps, the employee would be fired.

But this just feels more complicated. Who is liable here? Who should this be reported to? Should it even be reported?

Those are all good questions for an employee experiencing sexual harassment from a contractor.

When an employee faces sexual harassment from a contractor (or even a customer), employees are often confused about what to do and who is liable. Most employees know and understand that employers can be held liable for sexual harassment by their employees. But can employers also be held liable for sexual harassment by their contractors?

Yes. They can. And the company that employs the contractor may also be liable.

Let’s explain more.

Employers are responsible for ensuring that they have a workplace free of sexual harassment. That means that if one employee is harassing another, the employer should take steps to stop it. But employers also bear a general duty to create a safe environment for their employees. That means an environment free of sexual harassment. So if there is harassment from a contractor, and the employer knows about it, the employer could be found liable if they fail to take action. This means that even if the employer is not responsible under general agency principles (i.e., the contractor is not necessarily the agent of the employer), and even if specific employment laws might not apply in the same ways they ordinarily do, there is still liability for the employer.

At the same time, the company that employs the contractor (of the contractor themselves if they are self-employed) can also be held liable if the company knows about the sexually inappropriate action and fails to take action to stop it. Likely, the company will be sued under a general negligence theory.

The good news for employees who face harassment from a contractor, therefore, is that there may be multiple parties who can be held liable. Courts allow employees to plead multiple claims and point the finger at multiple organizations or entities to determine liability. Ultimately, it will be up to a judge, jury, or arbitrator to apportion liability, which means dividing liability up by percentages. So it could be that your employer is held 50% liable and that the contractor’s company is held 50% liable if they both failed to take action to protect you. It could also be an 80/20, 60/40, or 95/5 split. It all depends on the facts.

But here’s the catch: your employer, and the contractor’s employer, generally have to know about the harassment or be in a position where it reasonably should have been aware of it to be held liable. Otherwise, that percentage of liability is likely to be minimal or non-existent.

That means you should report it (preferably in writing) if you want to have protection. And you should probably report it to your employer and the contractor’s employer. Be sure to keep a record that you reported it, whether that means printing off your complaint or photographing it with your phone. And be sure that what you say is truthful and tactful. Otherwise, you risk facing a lawsuit yourself for defamation.

If your employer, or the contractor’s employer, fails to take action to protect you from further harassment, then they both might be held liable. The case might look different than a garden-variety sexual harassment employment case, but there is likely still a case. For instance, the cause of action might focus more on negligence than on employment discrimination if the contractor rather than the employer bears more responsibility.

For employees facing harassment from a contractor, the pressure can often feel overwhelming to ignore sexual harassment and sweep it under the rug if the employer has a significant relationship with the contractor. Employees fear retaliation or that they will be blamed for souring a business relationship or hurting their company’s finances. That’s understandable. But often, the only way to get protection is to speak up tactfully. The earlier the better.

Employees can often benefit from speaking with an attorney early in the stages of these types of cases because an attorney can help navigate how to protect oneself from retaliation while also ensuring that legal rights are protected.

An attorney will also likely look closely at the contractor classification. The harasser might be called a “contractor” by your employer. But the reality is that they may not be. Whether an individual is a contractor or an employee is a fact-sensitive legal issue. And the classification as either an employee or a contractor can have a massive impact on a case and the legal strategy. In other words, you might think a “contractor” is harassing you. But in reality, courts might view it as simple harassment by another employee. So don’t make assumptions about the contractor relationship. Even if that’s what it’s called, it might be something else.

So when a contractor makes sexual advances, keep in mind that your employer and the contractor (whether an entity or an individual) might both be liable. And reaching out to an attorney early to make sure you protect your rights might be one of your best steps.