Mitigating the Employer’s Exposure to Third Party Claims of a Hostile Work Environment

We are only beginning to understand the impact of sexual harassment in the workplace on third parties. With few precedent cases, potential third party plaintiffs face the extremely difficult task of providing evidence of quid pro quo or hostile work environment sexual harassment when substantiating their claims as victims of widespread sexual favoritism, unreasonable interference in their workplace, or an intimidating, hostile, or offensive environment. However, as judicial decisions bring clarity to sexual harassment law, new theories provide promising options for potential plaintiffs, and courts increasingly recognize the viability of sexplus theory, the potential for third party sexual harassment claims grows. This Article reviews legislation and case law on sexual harassment, hostile work environments, and sexual favoritism, paying particular attention to their implications for harmed third parties. It aims to aid legal practitioners and employers alike by improving their understanding of third party hostile work environment claims, helping them identify how these claims may arise, and suggesting appropriate steps to mitigate the risks of potentially costly litigation. The Article then examines the expanding set of legal theories available to potential plaintiffs, including highlights of the emerging sex-plus theory. The Article next reviews the role of employers in safeguarding the work environment from sexual harassment—encompassing policy development, employee education, procedures for handling complaints, and internal investigations—with a special focus on approaches sanctioned under the current law. The Section argues that employers need to respond to the ongoing threats of sexual harassment with preventive measures, and recognize that some victims of sexual harassment can be found among the untargeted coworkers of the perpetrator. Hence, business policies and procedures need to consider such third parties to sexual harassment, and employers need to educate employees about their rights and employers’ responsibilities in helping to safeguard employees’ working environments