Wal-Mart case offers lesson on employer responsibility
Published 07/15/05

An employer may be held legally responsible for sexual harassment of an employee by a customer if the employer knew or should have known about the acts of harassment and failed to take remedial action to prevent further harassment.

This point of law was reinforced in the May 31, 2005 decision of Cevin F. Kolden v. Wal-Mart Stores, Inc. In that decision from the Federal Court in Wisconsin the Court found that Wal-Mart was not entitled to summary disposition of its employee Kolden's lawsuit against it for sexual harassment by a customer and therefore the case could go to trial.

Cevin Kolden commenced work at the Beloit Wal-Mart on February 21, 2002 as a sales associate in the garden center. From May 2002 until February 21, 2003, customer George Fields came into the Beloit Wal-Mart store two or three times a week. Fields was in the garden center more than a normal customer and would stare at Kolden. Kolden complained to his supervisor who told him to remove himself from the situation if Fields was in the store. Coworkers warned Kolden many times that they had seen Fields or that Fields had asked for him.

In May 2002, Fields sexually propositioned Kolden and rubbed the back of his hand on the outside of Kolden's leg for about three seconds. Kolden told Fields not to do it again and to leave him alone. Kolden reported this again to his supervisor who told him to tell a salaried member of management. Kolden then told the co-manager that there was a man propositioning him.

In June 2002, Fields propositioned Kolden and rubbed Kolden's thigh with the back of his hand and his palm. Kolden told Fields to leave him alone and not to touch him. Kolden told another co-manager about it and that manager said he could not talk to Fields because he had not seen it happen.

In July 2002, Fields asked Kolden whether he would change his mind and rubbed the outside of his leg with the back of his hand. Fields asked Kolden if he would set him up with a Wal-Mart male cashier. Kolden said he would and went and told the cashier. That cashier said he also experienced problems with Fields. Kolden told the co-manager that Fields had propositioned him and the cashier. That co-manager said he could not do anything about it unless he saw it.

The cashier talked to another co-manager about Fields attention towards him. The co-manager talked to Fields and told him to stay away from the cashier, which he did. Kolden's supervisor told an assistant manager three or four times that Fields looked at Kolden and seemed to follow him around. No one from management ever followed up concerning the reports about Fields behavior towards Kolden.

Between July 2002 and February 2003, Fields continued come into the store and on February 21, 2003 Fields sexually assaulted Kolden in the men's bathroom at the Wal-Mart store. Kolden talked to Wal-Mart's Loss Prevention personnel who walked around the store, located Fields, he was arrested and thereafter banned from the store. On April 30, 2003, Kolden quit his job at Wal-Mart and thereafter sued for sexual harassment.

For the Court, the question was whether Wal-Mart knew of the acts of harassment prior to the February 21, 2003 sexual assault and failed to take remedial action to prevent further harassment. The Court noted that it was undisputed that management and the supervisor knew of the various harassments in May, June and July 2002. It was disputed whether Wal-Mart had taken appropriate remedial action prior to the sexual assault on February 21, 2003. Wal-Mart said that the February 21, 2003 sexual assault was not foreseeable or predictable.

The Court noted that had Fields been banned from the store or warned about his prior behavior towards Kolden the February 21, 2003 incident might not have occurred. Therefore, there was a genuine issue for the jury to determine allowing the case to go to trial rather than be summarily disposed of in Wal-Mart's favor.

For employers this case is a helpful reminder to them that they have obligations to prevent their customers from sexually harassing their employees. Employers should not wait for some formal, written complaint before they act.

Employees need to realize that they must speak with management about a customer's harassment, and if the employee feels management is not taking the matter seriously enough, she should put the details of the harassment in writing so that the employer clearly knows that the employee seeks the employer's intervention and assistance to stop the harassment.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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