Employer Catering to Discriminatory Harassment and Preferences by Influential Outsiders

Dallan F. Flake, Employer Liability for Non-Employee Discrimination, 58 B.C. L. Rev. 1169 (2017). Michael Z. Green In a recent Boston College Law Review article, Employer Liability for Non-Employee Discrimination, Professor Dallan Flake (Ohio Northern) addresses a subject that has generally perplexed me as well as many employees and employers—how courts can develop a cohesive framework under Title VII to address employer liability for employment discrimination actions due to the behavior of company outsiders. In particular, I have always wondered about the usual trope that customer preference cannot be a defense in discrimination claims while recognizing that there is nothing more important to employers than the preferences of their customers. This article catalogues a host of very interesting cases describing the acts of customers and other non-employee harassers or their biased preferences that raised liability concerns for employers in discrimination claims brought…

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