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eLABORate: Fifth Circuit Finds Employer Liable for Harassment by Nonemployee with Diminished Capacity

Title VII of the Civil Rights Act of 1964 (“ VII”) prohibits unlawful harassment in the workplace that is perpetrated by coworkers and supervisors. Such harassment, whether based on sex (including pregnancy), race, color, religion, national origin, age, disability or genetic information can expose employers to potentially expensive litigation and liability. However, it is important to remember that employers also can be liable for harassment from nonemployees. For example, a restaurant may be liable if it fails to address a customer’s sexual harassment of a waiter or waitress.

Fifth Circuit Permits Employee Allegedly Harassed by Patient to Proceed to Trial

A recent Fifth Circuit decision reminds healthcare employers that liability not only stems from potential harassment of employees by coworkers, but by patients as well. In Gardner v. CLC of Pascagoula, L.L.C. dba Plaza Community Living Center, 2018 U.S. App. LEXIS 17939 (5th Cir. June 29, 2018), the Fifth Circuit held that Kymberli Gardner, a former assisted living facility certified nursing assistant who was allegedly harassed by a patient, can proceed with her hostile work environment claim to trial. The Court reversed the district court’s grant of summary judgment in favor of the employer.

Risky Business: A Three-Step Plan For Addressing Harassment By Nonemployees

Employers have long understood that they face potential liability when an employee is sexually harassed by another employee and they do nothing to prevent or fix the known problem. It is also true, but perhaps less well known, that similar liability can result when employees are harassed by customers, patients, or other nonemployees. Ignorance of this potential liability can be costly, but you can minimize your risks by following a simple three-step plan.

Employers Can Be Liable for Non-Supervisors Who Malign an Employee’s Job Performance

The United States Court of Appeals for the First Circuit (“First Circuit”) recently held an employer could be liable for sex discrimination under Title VII where an employee’s job performance is maligned by a co-worker. The co-worker’s romantic overtures were rebuffed by the employee, the co-worker had intended to cause the employee’s termination, and the employer knew or should have known of the discriminatory motivation.

Danger Ahead: Employer Liability For Third-Party Harassment

On April 29, 2014, the Fourth Circuit Court of Appeals held that employers can be liable for third-party harassment under a negligence standard. In doing so, the court joined other circuits in establishing that employers can be liable under Title VII for third parties that create a hostile work environment, provided the employer knew or should have known of the harassment and failed to take prompt remedial action to end it.

Third-Party Harassment Could Lead To Employer Liability

Most employers understand the significant consequences of sexual harassment at the workplace and take proactive measures to train employees about proper conduct. However, liability is not limited to the conduct of employees. Employers also have a responsibility to prevent sexual harassment by third parties such as clients, vendors, patients, and customers, when the employer knows about the conduct and fails to take any corrective action. Although third-party harassment is reportedly just as common, many employers do not take appropriate steps to prevent it.

Employer Settles EEOC Suit Alleging Sexual Harassment of Employees by Customer

Under a consent decree recently approved by a federal district court in Florida, owners of a restaurant will pay $200,000 to servers who allegedly were sexually harassed by a regular customer. According to the complaint filed by the Equal Employment Opportunity Commission, restaurant management knew that the male customer, a deputy sheriff who patronized the restaurant several times a week, harassed female servers, but failed to take any action to stop him.

Harassment Is Not Part Of A Caregiver's Job Description.

Nowhere is sexual harassment more of a "touchy" issue than in the patient care arena. Nurses, nurse aids, therapists, and other attendants are in constant contact with non-employees…the patients who are paying for services, visitors of these patients, vendors, and even doctors with admitting rights. Title VII protects caregivers from sexual harassment in the workplace perpetrated by any of these individuals.
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