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Employer Liability for Customer Conduct: Former PNC Bank employee receives $2.4M jury verdict

Earlier this month, PNC Bank was on the wrong end of a sexual harassment jury verdict in a claim brought by a former employee. Why is this case interesting to you? Two reasons: The former employee was sexually harassed, but not by a PNC employee; and, the sexual harassment did not occur within a PNC workplace. 

A New Jersey jury awarded $2.4 million to Damara Scott, a former employee of PNC Bank, who alleged the employer failed to protect her from unwelcome touching by a customer.

Ms. Scott alleged she was leaving work in 2013 when a customer began following her to her car. The customer, Patrick Pignatello, allegedly said “I offer full services and I’m willing to please.” Then he pressed and ground his crotch into her buttocks. 

The lawsuit against PNC began in 2015. Pignatello had died by then. After over four years of litigation, the jury ruled against PNC. Key allegations were that Pignatello had previously harassed other female workers and customers within the PNC branch. While he was occasionally banned from the branch, his accounts were never closed as he was a profitable customer who referred other business to the bank. The jury found the employer had a duty to protect its workers from harassment beyond only the acts of its other employees. Ms. Scott was subjected to harassment based on her gender, and the employer was liable for the incident to the tune of $2.4 million. * 

An informed reader may dismiss this article because it occurred in New Jersey, which is often referred to as the California of the Atlantic coast for its liberal protections of employees. However, the principles from this case are found in federal laws, including Title VII of the Civil Rights Act of 1964, as well as most state laws and regulations. This article is being written in Ohio, which has a specific provision that: 

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, 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. . . .
Ohio Administrative Code 4112-5-05(J)(5). 

The lesson: An employer’s obligation to its employees harassed by any non-employee (customer, vendor, business invitee, contractor, etc.) is the same as if the harasser was an employee. The Employer must investigate and implement prompt remedial measures to ensure that the harassment stops and does not reoccur. 

For additional information or to make sure your policies and trainings are complete and up to date, contact me at 216.658.2323 or jcmiller@bmdllc.com, or reach out to any of our Labor + Employment attorneys

*PNC has denied all allegations and is appealing the jury verdict.