Supposean examiner or a member starts making one of your employees feel uncomfortable by greetingher with sexually charged innuendos and asking her out on dates. Is the credit union on the hook for this harassment since the examiner is not an employee of the credit union or under the control of the credit union? The short answer is absolutely:29 CFR 1604.11, promulgated by the EEOC, provides that:
(e) An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
For those of you who have been reading thetrade presslately, you know that on November 7 NCUAwill dust off its highest administrative appeals panel, the SRC, to hear an appeal of Ohio credit union Commodore Perry. The credit union contends that it was punished with a lower CAMEL rating by an examiner who found out that the credit union had complained to his regional office that he was sexually harassing and bullying staff members. A subsequent investigation of the allegations by NCUA’s Office of Inspector General concluded that there was no harassment and the regional director denied the appeal. I have no way of knowing what ultimately happened at the credit union, but, in addition to providing an important example on sexual harassment liability, the situation demonstrates yet again the need for a truly independent administrative appeals process.
