There has been increased skepticism of sexual harassment claims, both in the public sphere1 and in the courts.2 Recently, in Anderson v. Mott Street,3 the Seventh Circuit joined this trend by applying a heightened employer liability standard of recklessness to customer harassment and by holding that the plaintiff had not established sexual harassment premised on a hostile environment.4 The Mott court departed from standard practice by applying a heightened liability standard to customer harassment through an inaccurate reading of case law. Mott’s novel analysis is therefore unjustified and leaves employees even more vulnerable to wrongful customer conduct.
Nikkolai Anderson was a host at Mott Street, a restaurant in Chicago.5 Anderson claimed that while working at Mott Street, she was harassed by customers.6 Anderson allegedly complained to two superiors after a customer touched her buttocks and chest.7 After the incident, Anderson asked if she could dress in less revealing clothing or change positions in the restaurant because the customer interactions had made her uncomfortable,8 but management declined both requests.9 Anderson claimed that while working at Mott Street, she “complained about the patrons groping a lot.”10
After telling a manager in writing that “[t]he work environment is extremely hostile,”11 Anderson was terminated.12 Mott Street claimed that it fired Anderson because of negative customer reviews and performance issues.13 Mott Street also claimed that the termination decisionmaker did not know about Anderson’s written complaints at the time of termination.14
Anderson sued Mott Street in the United States District Court for the Northern District of Illinois, alleging sexual harassment based on a hostile work environment, sex discrimination, and retaliation15 under Title VII,16 as well as intentional infliction of emotional distress (IIED).17
The district court granted Mott Street’s motion for summary judgment on all claims.18 In his opinion, Judge Durkin determined that Anderson had violated a local evidence rule by failing to properly support some of her asserted facts.19 However, because he found that the facts did not affect the case’s outcome, he considered them anyway.20 The court concluded that Anderson had not established sexual harassment based on a hostile work environment because the alleged incidents of harassment were “non-serious and isolated.”21 The district court did not consider Anderson’s allegations of harassment from customers in its analysis.22 In a footnote, Judge Durkin claimed that “Mott Street ‘is not vicariously liable for the sexual harassment of its employee by a customer.’”23 He ruled for Mott Street on Anderson’s sex discrimination claim because she had failed to establish different treatment or pretext.24 Judge Durkin also found for Mott Street on Anderson’s retaliation claim because the termination decisionmaker was unaware of Anderson’s protected conduct at the time of decisionmaking.25 Anderson’s IIED claim was deemed both time-barred and preempted.26 Anderson subsequently appealed her Title VII claims.27
The Seventh Circuit affirmed.28 Writing for the unanimous panel, Judge St. Eve found that “Anderson ha[d] not established a triable issue of material fact” for any of her Title VII claims.29 Like the district court, Judge St. Eve determined that Anderson had not established sexual harassment based on a hostile work environment because the alleged incidents of harassment were insufficiently “severe or pervasive.”30 The opinion did not consider the alleged harassment from customers, writing that “without any indication that Mott Street recklessly permitted th[e] behavior, it is not liable for the actions of its customers.”31 Judge St. Eve also affirmed summary judgment for Mott Street on Anderson’s sex discrimination claim, finding that Anderson’s example of a male coworker who received different treatment was an insufficiently similar comparator.32 The court found no evidence of pretext for the termination.33 Finally, Judge St. Eve rejected Anderson’s retaliation claim because she found that Anderson’s protected conduct could not have caused the termination.34
The Mott court deviated from standard practice in picking out customer liability for an unjustifiably heightened standard through an erroneous reading of case law. Non-supervisory35 harassment — including harassment from customers, coworkers, and independent contractors — has historically been analyzed under a single negligence liability framework, but the Mott court applied a heightened liability standard of recklessness distinctly to customer harassment. Mott misapplied Equal Employment Opportunity Commission (EEOC) v. Costco Wholesale Corp.36 in support of this drastic move. This departure from — and misreading of — the law is particularly concerning since it raises, with inadequate justification, the already high bar to relief for victims of customer harassment.
Mott’s application of a heightened liability standard of recklessness to customer harassment37 was a departure from standard practice. Federal courts38 and the EEOC39 have historically analyzed all non-supervisory harassment under a single negligence standard. The Mott court even deviated from its own circuit. In Dunn v. Washington County Hospital,40 the Seventh Circuit’s Judge Easterbrook had used negligence language41 to describe the liability standard for all non-supervisory harassment, saying that “it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.”42 Judge Easterbrook explained that “[t]he employer’s responsibility is to provide its employees with nondiscriminatory working conditions. The genesis of inequality matters not; what does matter is how the employer handles the problem.”43 Mott completely departed from standard practice by picking out customer harassment for a heightened recklessness standard.44
Mott’s novel approach is not supported by its citation to Costco. Costco applied a confusing — but singular — liability standard to all non-supervisory harassment.45 Then-Judge Barrett wrote in Costco that “an employer is responsible for its own negligence if it is ‘reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons . . . under his control.’”46 This formulation, which mentions both negligence and recklessness, is admittedly confusing — but other aspects of the Costco opinion are consistent with a negligence standard. A “reasonableness” requirement denotes a negligence standard,47 and Costco adopted “reasonableness” language multiple times.48 When Costco mentioned recklessness, it was quoting another case that based liability on whether an employer is “negligent or reckless.”49 Costco’s liability language is confusing, but, if anything, it supports a unified negligence standard, not Mott’s unique recklessness approach for customer harassment.
Aside from established practice, there are substantive reasons to think negligence, and not recklessness, is the more appropriate employer liability standard for customer harassment. First, a recklessness standard constructs a huge barrier to relief for victims of sexual harassment. Second, imposing such an obstacle runs counter to the Supreme Court’s previous statements on Title VII employer liability. Third, while some advocate for a recklessness customer harassment liability standard on the grounds that it is fairer to employers,50 negligence is a completely fair standard. Negligence does not subject employers to undue liability, and the exposure it does create is justified given employers’ role in contributing to — and their ability to mitigate — customer harassment.
Mott’s application of a recklessness standard rather than negligence for employer liability in customer harassment cases significantly hinders sexual harassment victims from obtaining judicial relief. “There is a wide difference between negligence and . . . reckless[ness],” so wide “as to amount to a difference in kind.”51 Under a negligence standard, an employee would only need to show objective deviation from the standard of reasonable care,52 but to show that their employer was reckless, an employee would need to show that the employer’s conduct “involve[d] a substantially greater risk” with “consciousness that [the] conduct will likely cause injury.”53 Plaintiffs will have a much harder time recovering in customer harassment cases against their employers if they have to show that their employers were reckless, rather than just negligent.
Placing this recklessness obstacle in front of sexual harassment victims does not make sense given what the Supreme Court has said on Title VII employer liability standards. While the Supreme Court has not addressed customer harassment directly, it has stated that “[n]egligence sets a minimum standard for employer liability under Title VII.”54 Additionally, Justice O’Connor has defined sex discrimination as a “statutory employment ‘tort,’”55 and negligence is the dominant standard in tort law.56 The Mott court’s heightened recklessness standard for customer harassment is unjustifiably in tension with the Supreme Court’s previous statements on employer liability.
Raising the liability standard from negligence to recklessness cannot be justified on fairness grounds because negligence does not overexpose employers to liability. It is actually quite difficult for employees to prevail under a negligence liability regime unless they reported the harassment to the employer.57 This bars many employees from remedies, since sexual harassment victims are often hesitant to report,58 perhaps especially in cases of customer harassment.59 Scholars and judges have criticized the negligence standard for sexual harassment as being too difficult for employees to meet.60 Concern that a negligence standard places excessive burdens on employers seems misplaced when negligence has been the liability standard for over forty years61 and customer harassment remains pervasive.62 If anything, it seems that the negligence standard is too permissive of customer harassment, not that it is too burdensome on employers.
Fairness concerns are especially misplaced given how employers contribute to, and have the power to prevent, customer harassment. Employers may increase the risk of customer harassment by forcing employees to wear sexualizing uniforms63 or instituting harassment-prone policies, like tipping.64 Employers want to facilitate an environment that pleases the customer65 and may “prioritiz[e] customer satisfaction” over the employee’s right to work free from discrimination.66 It is fair to hold employers to a negligence liability standard because they are in the best position to take reasonable steps to alter common employment practices and prevent customer harassment.
It is also fair to hold employers to a negligence standard because employers control the workplace environment and can stop customer harassment. Though an employer may not be able to direct a customer in the exact way they direct employees, the employer in both scenarios “ultimately controls the conditions of the work environment.”67 Just as an employer can fire an employee, it can ask a customer to leave.68 “The focus of the inquiry in a hostile work environment claim . . . is on whether ‘the workplace is permeated with “discriminatory intimidation, ridicule, and insult.”’”69 In cases of customer harassment, the employer has control over the workplace in ways that would allow it to attempt to remedy a hostile environment: “Employers are not the helpless entities that courts seem to make them out to be.”70
Mott’s application of a heightened liability standard to customer harassment deviated from standard practice, misread relevant case law, and cannot be justified on policy grounds — but that does not mean that the outcome of Mott was wrong. Anderson may have lost her case even if Mott conducted the proper analysis.71 The concern here is not with the outcome of Mott but with the basis on which it was decided: Mott’s unique approach to customer harassment makes customer harassment claims much harder to win, leaving employers inadequately incentivized to address this problem and employees exposed to harm.
The Mott court’s treatment of customer harassment is concerning because it undermines employees’ already limited power in the face of misconduct. “[S]tudies show that customer sexual harassment is widespread and common . . . .”72 Customer harassment is especially concerning for women, in particular low-income women and women of color, as they are more likely to work in customer-facing industries.73 The Mott court’s troubling decision inappropriately removed the incentives that employers in the Seventh Circuit had to prevent and address customer sexual harassment.