Harassment by Customers or Third Parties Under FEHA
Workplace harassment doesn’t always come from a supervisor or coworker. In many industries, healthcare, retail, hospitality, delivery, security, tech support, and customer service, employees regularly interact with customers, clients, patients, vendors, or contractors. When those third parties engage in harassing conduct, employees often wonder: Is my employer responsible if the harasser isn’t on payroll?
In California, the answer is often yes. Under the California Fair Employment and Housing Act (FEHA), employers can be liable for harassment by non-employees when they know (or should know) about the conduct and fail to take immediate and appropriate corrective action. This article explains how FEHA treats third-party harassment, what qualifies as unlawful conduct, how liability works, and what employees can do to protect their rights.
FEHA’s Rule on Third-Party Harassment
FEHA makes it unlawful for an employer to harass an employee because of a protected characteristic. Importantly, Government Code § 12940(j) extends that protection to harassment by nonemployees, including customers and clients, when the employer knew or should have known of the harassment and failed to act.
The California Civil Rights Department (CRD) explains that employers may be responsible for harassment by third parties if they don’t take reasonable steps to stop it once on notice.
What Counts as Third-Party Harassment?
To be unlawful under FEHA, the conduct must be unwelcome, based on a protected characteristic, and severe or pervasive enough to create a hostile or abusive work environment.
Protected characteristics under FEHA include:
Race, color, ancestry, national origin, religion, sex, gender identity/expression, sexual orientation, age (40+), disability, medical condition, pregnancy, marital status, and military/veteran status.
Common examples involving customers or third parties:
- A patient makes repeated sexual comments to a nurse.
- A customer uses racial slurs toward a cashier.
- A client refuses to work with an employee because of religion or gender identity.
- A vendor sends sexually explicit messages to a company’s account manager.
- A regular patron harasses a bartender and management tells staff to “just ignore it.”
FEHA does not require the employer to control the customer’s behavior perfectly, but it does require reasonable, prompt action once the employer is aware.
How Employer Liability Works Under FEHA
The “knew or should have known” standard
Employers can be liable if:
- They knew about the harassment (through a report, complaint, or observation), or
- They should have known (the conduct was obvious or recurring), and
- They failed to take immediate and appropriate corrective action.
This standard is explained in Gov. Code § 12940(j) and reinforced by CRD guidance.
- What is “appropriate corrective action”?
What’s “appropriate” depends on the circumstances, but can include:
- Warning or banning the customer
- Reassigning the customer to a different employee
- Changing schedules or locations to separate the employee from the harasser
- Ending a business relationship with the client/vendor
- Providing security or supervision
- Clearly enforcing a zero-tolerance policy
What is not appropriate:
- Doing nothing
- Telling the employee to tolerate it
- Punishing or transferring the employee as the “solution”
- Continuing to assign the employee to the same harasser without safeguards
FEHA Is Broader Than Federal Law
Federal law (Title VII) also recognizes third-party harassment, but California law is often more protective. FEHA’s “severe or pervasive” standard and strong failure-to-prevent provisions make it easier for employees to bring claims when employers minimize customer misconduct.
California courts evaluate the totality of circumstances, including frequency, severity, and the employer’s response once on notice.
Failure to Prevent Harassment Is a Separate Violation
Even if an employer claims the harassment wasn’t severe enough, FEHA separately makes it unlawful for an employer to fail to take all reasonable steps to prevent harassment.
Gov. Code § 12940(k)
This means employers should have:
- Clear anti-harassment policies
- Reporting channels that employees can use without fear
- Training (including on third-party harassment)
- Prompt investigation and corrective action
Ignoring customer harassment can expose employers to two claims: hostile work environment and failure to prevent harassment.
What Employees Should Do If a Customer or Client Is Harassing Them
Step 1: Document everything
Keep a private log with dates, times, what was said/done, who was present, and how it affected your work. Save emails, texts, or messages from customers or vendors.
Step 2: Report the conduct
Report to a supervisor, HR, or the designated contact in your company’s policy. Reporting puts the employer on notice, which is critical for liability.
Step 3: Ask for protective measures
You can ask for steps that reduce exposure to the harasser (reassignment of the customer, schedule changes, security support). Employers should explore reasonable options.
Step 4: Watch for retaliation
FEHA also prohibits retaliation for reporting harassment. If negative actions follow your report, document timing and details.
Step 5: Consider a CRD complaint
If the employer fails to act, employees may file a complaint with the California Civil Rights Department (CRD). Employment complaints generally must be filed within three years of the last harmful act.
Remedies Available Under FEHA
If a claim succeeds, FEHA may allow recovery of:
- Back pay and front pay
- Emotional distress damages
- Punitive damages (in egregious cases)
- Reinstatement or policy changes
- Attorney’s fees and costs
The goal is not only compensation, but also stopping the behavior and preventing future harm.
Call to Action
If you’re being harassed by a customer, client, patient, or vendor, and your employer is ignoring it or blaming you, you may have protections under FEHA. Acting early can protect your well-being and your legal rights.
Smith & Reback Law represents California employees in harassment, retaliation, and FEHA claims, including cases involving third-party misconduct.
📧 Email: Intake1818@smithrebacklaw.com
📞 Phone: (213) 433-1818
📍 Address: 16255 Ventura Boulevard, Suite 600, Encino, California 91436
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