By now, most of us know that Title VII, the ADA and a number of other federal laws prohibit harassment by employers. You probably also know that an employer can be held liable for harassment based on sex (including pregnancy), race, color, religion, national origin, age, disability or genetic information by an employee’s supervisor or a co-worker. What if an employee experiences harassment by an a non-employee though? For example, if you run a retail store and a vendor persistently propositions and gropes one of your cashiers or managers? Can you be liable for that? Often, yes. Suppose your company or organization regularly services people with diminished capacity. Can you be liable for harassment by such a person? The answer there may also be yes. The Fifth Circuit Court of Appeals just ruled that way. Wait. How can an employer be liable for behavior of a non-employee with diminished capacity? Read on and you’ll see..
(image from statnews.com)
I will start by saying that generally, courts are hesitant to hold employers liable for conduct of clients or patients with diminished capacity. However, that does not mean that employers have a free pass under these circumstances. There are limits as today’s case will show.
The case is Gardner v. CLC of Pascagoula. Kimberly Gardner worked as and had extensive experience as a Certified Nursing Assistant at an Assisted Living Facility. She was assigned to an elderly resident with dementia. This resident groped female employees and became violent when they resisted. On one particular day, he tried groping Ms. Gardner, and struck her when she resisted. She and a co-worker tried to move him. He struck her again. She swung toward him (it is unclear whether it was deliberate) and missed him. She walked out, and allegedly say she was the wrong skin color. A white nurse managed to calm her down. Ms. Gardner went out on workers’ compensation and was fired when she returned. The employer cited her “racist comment” and the fact that she swung at the resident as the basis for her termination. Ms. Gardner sued, alleging sexual harassment, hostile work environment and retaliation. The United States District Court granted summary judgment to the employer (effectively dismissing the case). Ms. Gardner appealed to the 5th Circuit Court of Appeals.
Let’s add a bit more to those facts. It was known that the resident groped women daily. He would grope their buttocks, breasts, genitals, and thighs. Ms. Gardner complained to management. Management did nothing to stop the behavior. One manager even told her to “put on your big girl pants”. After the resident punched Ms. Gardner 3 times, she asked for a transfer. Management said no. Ms. Gardner presented evidence of what other nursing facilities with similar issues did, including requiring two or more aids, trying to use medications to control behavior, or simply transferring the patient to some other facility. Management did none of these things. Only after firing Ms. Gardner — long after firing her–did CLC ultimately transfer the resident to an all-male facility with lock-down security.
The 5th Circuit found the resident’s behavior to be “severe or pervasive”. The court also noted that management made no effort whatsoever to stop the harassment. The court recognized that there are some times when it is not possible to prevent a mentally ill patient from acting aggressively and in such cases an employer would not be liable for actions of a third party. The court also specifically stated that such was not the case here. In fact there were a number of options available to the facility and it made no effort to protect its employee, and that is why the 5th Circuit reversed the lower court’s summary judgment.
So what are the takeaways? Here are a few:
- Under Title VII and most other federal anti-discrimination laws, employers can be held liable for discriminatory and harassing behavior of third parties if they knew or should have known of the behavior and did nothing to stop it;
- Under the Occupational Health and Safety Act (OSHA) employers are also responsible for providing their employees a safe workplace;
- While employers are not always liable for acts of mentally ill non-employees, they should still make appropriate attempts to protect their employees.
- When an employee complains of harassment by a non-employee, take the complaint seriously, and make appropriate efforts to address it;
- Make sure your managers receive proper training, and follow up. Talk and listen to your employees to see if your policies and training are actually effective and take appropriate action to ensure that they are.
- Oh, and on a slightly unrelated note, think long and hard before firing an employee that takes workers comp (or any kind of medical) leave. Most states’ workers comp laws prohibit that.
Let’s leave it at that for now, shall we? See you next week.
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