Circuit sidesteps interesting HWE issue as academic

In a relatively routine sexual harassment case, the Court of Appeals notes that it has never decided an employer is liable for the harassment of non-employees. But it doesn't matter in this case, because there was no hostile work environment.

The case is General v. Center for Disability Rights, a summary order decided on June 5. While employed by the Center for Disability Rights as a home care attendant, a non-employee by the name of Taylor made six or seven sexually-explicit remarks to her, usually about her physical appearance. Taylor also said these things to someone else, who reported these comments to plaintiff. Taylor did not work for CDR but had supervisory authority over plaintiff.

The question of whether CDR is responsible for Taylor's harassment is an interesting one, and the Second Circuit (McLaughlin, Sack and Livingston) teases us with this issue of first impression:

This Court has yet to determine whether an employer may be held liable on a hostile work environment theory on the basis of the conduct of non-employees, such as Taylor. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) ("[W]e need not decide the precise contours of the duty, if any, that employers owe to employees who are subjected to harassment by outsiders such as customers..."

Courts don't like resolving complicated issues if they don't have to. And the Second Circuit doesn't have to here, "because Appellant has failed to adduce evidence sufficient to permit a reasonable trier of fact to conclude that anyone at CDR knew of her alleged harassment but failed to respond." If CDR did not know about the harassment, then it had no duty to correct the problem. This issue of management liability for third party harassment would be academic in this case. Someone else will have to brief and argue it.