Last month I wrote that conduct that is sexual in nature does not necessarily constitute sexual harassment unless it is directed at a person because of his or her sex. But what about conduct that is not necessarily sexual in nature, but really creepy? In other words, can stalking be considered sexual harassment, even if it is not overtly sexual? If so, can an employer be liable when a customer or some other third party is doing the stalking? In a recent case involving Costco, the Seventh Circuit unequivocally found that it can and was.

In EEOC v. Costco, Case No. 17-2432 (7^th Cir. Sept., 2018), the Seventh Circuit addressed, in essence, the issue of stalking in the workplace. The case involved an employee who was subjected to repeated, disturbing conduct by a Costco customer. The customer appeared on the premises on multiple occasions over the course of several months, watching the employee, attempting to strike up conversations with her, asking her personal questions (e.g., where she lived, if she had a boyfriend, etc.) and other questions in “sexual way,” complimenting and commenting her on her appearance (e.g., telling her she was “pretty” and “exotic,” commenting on her makeup, etc.), repeatedly asking her out on dates, bumping his cart into her, twice touching her (once on the wrist and once on her face) and videotaping her from afar – conduct that was not patently sexual, but certainly creepy and unsettling, to say the least.

The employee reported the conduct to her managers, who spoke with the customer, but did little more. In fact, one of the managers told her to “be friendly” to him. The customer persisted and his conduct continued for the next 13 months. The employee obtained a no-contact order against him, and still, Costco did nothing more than instruct the customer to shop at another store. The employee eventually took a medical leave due to emotional trauma and never returned, after which Costco terminated her employment. The EEOC then filed a sexual harassment action against Costco, claiming that it discriminated against the employee on the basis of her sex by tolerating the harassment and failing to effectively respond to her complaints.

Costco argued that the “tepid” conduct at issue was not sufficiently severe or pervasive to rise to the level of actionable sexual harassment, citing cases involving conduct that was far more sexual in nature, but were still dismissed. It argued that the customer’s conduct was not vulgar or lewd, and that the touching was mild and not sexual in nature. The court agreed that the conduct was not as severe as that in other cases that had been dismissed, but found that it could still, and indeed did, constitute actionable harassment, even though not overtly sexual in nature. It thus found, based on the totality of the circumstances, that the customer’s conduct was “pervasively frightening and intimidating” to an average person, and therefore actionable.

Having found the conduct actionable under Title VII, the court found Costco liable for the actions of the customer, upholding the jury’s finding that its response to the employee’s complaints was unreasonably weak – a conclusion Costco did not challenge. (Ya’ think?)

Most noteworthy about this decision is not the court’s discussion of whether “stalking” constitutes a form of sexual harassment, but rather, Costco’s inept and callous response to the employee’s complaints. It thus constitutes yet another invaluable lesson for employers – that complaints of unwelcome conduct should not be ignored or dismissed, regardless of the underlying nature of the conduct, especially when it continues after having been instructed to stop.

If you have any questions about stalking, sexual harassment, or responding to complaints of harassment in the workplace, feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.