See No Evil, Hear No Evil: See No Defense For Third-Party Harassment?

It is rare that a distinguished federal appellate court invokes the "See No Evil, Hear No Evil" approach to deciding a case, but this is exactly what happened in a recent decision involving a North Carolina based tile and stone distributor. The case confronted the court with the question whether an employer is liable for harassment of its employee by an outside vendor. The plaintiff was a customer service representative who had the unenviable task of dealing with an independent sales representative for the vendor. This sales rep was rather crude in what he said around the employer's customer service representative with whom he interacted nearly every day. His comments were often directed to the assistant manager and overheard by the customer service representative, but on other occasions, the sales rep showed the customer service representative pictures of naked women he had on his phone, "passed gas" on the representative's phone, and spoke to her in racially and