January 26, 2026

Employers May Be Liable for Workplace Harassment by Non-Employees

Employers can expect claims when their employees are harassed in the workplace by other employees or managers. But what happens when the employees are unlawfully harassed in the workplace by a third-party – such as a client, customer, delivery person, or student?  Employers may think they are off the hook, because they have only limited control over third parties. However, federal courts have consistently decided that, under appropriate circumstances, an employer may be held liable for harassment by non-employees.

The question then becomes:  What are the appropriate circumstances?

The answer may depend on where the alleged harassment took place. 

In most courts, the employer may be held liable if it knew, or should have known, that a third-party was harassing its employee, and the employer failed to take prompt and appropriate remedial action. The Second Circuit, which covers New York, Connecticut, and Vermont, agrees with this test.

The Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, disagrees. According to that court, an employer may be held liable for third-party harassment only if it intended for the harassment to occur — meaning the employer either wanted the harassment to happen or was substantially certain it would result. 

The Third Circuit, which covers New Jersey, Delaware, and Pennsylvania, has not said which test applies. But in October 2025, a federal district court in Pennsylvania chose to follow the Sixth Circuit.

Regardless of where the employer and employee are located, harassment by non-employees remains a significant issue—particularly in environments involving contractors, vendors, or workplaces open to customers or the public. Employers who fail to take measures to protect their employees or to appropriately handle employee complaints could end up with liability for third-party harassment.

For employers, the takeaway is clear: employers must take seriously reports of harassment by non-employees just as they would by employees. Employers must investigate such complaints and respond appropriately. 

If you have questions about employer liability for harassment or best practices in this area, please reach out to Chaim Book at cbook@booklawllp.com, Sheryl Galler at sgaller@booklawllp.com, Rebecca Nathanson at rnathanson@booklawllp.com, or Leona Hansen at lhansen@booklawllp.com.