Employers May Be Liable for Harassment by Customers
By Jim Griffin, JD, Employment Counsel
Published August 7, 2018
As the #MeToo movement has dominated the headlines for almost a year, the country has publicly debated and analyzed whether certain behaviors that had previously been deemed acceptable (or at least tolerable) in a variety of settings continue to be appropriate. In the employment setting particularly, both employers and employees have taken steps to address the subtler forms of harassment that had been commonplace in work environments. This has led to increased training to ensure that employees and supervisors are acting appropriately and that they are aware of the steps they could take to address harassing behavior if they experience or witness it.
However, one form of harassment that can often be overlooked and that may be trickier to address is harassment by an employer’s patients, customers, or patrons. This form of harassment can be difficult to handle because employers rely on their patients, customers, and patrons to keep their businesses running. It can also be difficult to prevent because employers cannot control who walks in the door; they cannot train every customer on how to properly interact with an employee.
Nevertheless, employees do have a right to be free from harassment by anyone with whom they come into contact as part of their jobs, and employers have a duty to address employee complaints of harassment, regardless of the alleged harasser. Failure to do so could lead to a costly lawsuit.
That’s exactly what happened to the defendant in a recent case decided by the Fifth Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas). In the case, Gardner v. CLC of Pascagoula, L.L.C., the plaintiff, a nursing assistant at a nursing home, alleged that a patient (who suffered from dementia and a variety of other conditions) groped her and solicited her for explicit sexual acts daily for several years. She stated that she attempted to complain to management, but she was told to “put [her] big girl panties on and go back to work.” Thus, the plaintiff continued to work with the patient.
The harassment allegedly came to a head when the resident repeatedly hit the plaintiff (causing injuries that ultimately required her to be off work for three months). According to the nursing home, the plaintiff hit back and cursed in front of the patient. The plaintiff asked to be reassigned, but her request was denied. When she returned to work from medical leave, she was fired for (1) insubordination; (2) violating the patient’s resident rights; and (3) attacking the patient.
She filed a lawsuit against the nursing home, alleging that she was subject to unlawful sexual harassment. The district court granted summary judgment in the nursing home’s favor, stating that it was "not clear that the harassing comments and attempts to grope and hit are beyond what a person in [the patient’s] position should expect of patients in a nursing home."
The Fifth Circuit Court of Appeals reversed. It did note that the nature of employment (working in a facility with patients with severe dementia and other conditions) must be taken account, but that "the multiple years of unwanted sexual grabbing and explicit comments Gardner endured could certainly be deemed severe and pervasive harassment." The Court stated that a jury could find the nursing home failed to take reasonable steps to correct or prevent the harassment from occurring, even after receiving complaints from the plaintiff (and others). The case was therefore remanded to the district court, where a jury would ultimately decide whether the nursing home was liable.
This case illustrates that an employer must take reasonable action when it knows or should have known that a third party (such as a patient, customer, or patron) is harassing an employee. If the action the employer initially takes does not sufficiently prevent the harassment from continuing, then the employer must take further action until the problem is properly addressed.
HR Source members dealing with a specific harassment situation should contact us via the HR Hotline at 800-448-4584 or firstname.lastname@example.org.