We previously wrote about the law of sexual harassment here. Not surprisingly, most claims of sexual harassment are directed against an employee’s supervisor or co-worker.
Title VII’s prohibition on sexual harassment, however, is not limited to misconduct by a supervisor or coworker. A claim can also arise when a third party, such as an independent contractor or a customer of the business, is guilty of the harassment.
The Fifth Circuit looks at an unusual situation
On February 6, 2019, the United States Court of Appeals for the Fifth Circuit issued its decision in Gardner v. CLC of Pascagoula, LLC.
In that case, Gardner worked as a Certified Nursing Assistant at CLC’s an assisted living facility. She claimed that one of the residents at the facility would grab her, make sexual comments, and make sexual requests on a daily basis.
It was well known throughout the facility that this particular resident engaged in that type of behavior.
In addition, Gardner specifically went to her superiors to complain and ask for assistance. One supervisor laughed, and the other told her to “put her big girl panties on and go back to work.”
Although the details are not important, Gardner was subsequently fired for how she responded to a particularly difficult situation in which the resident was both groping her and punching her.
What did Gardner need to prove?
The Fifth Circuit began its discussion with this statement: “Because the ultimate focus of Title VII liability is on the employer’s conduct – unless a supervisor is the harasser, a plaintiff needs to show that the employer knew or should have known about the hostile work environment yet allowed it to persist.”
The court also noted that the resident in question had a variety of physical and mental illnesses, including dementia, traumatic brain injury, and personality disorders. That factor, the court said, should also be taken into account.
The lower court rules for CLC
Gardner filed her lawsuit in District Court. That court concluded that a hostile workplace did not exist. Specifically, the court said it was not clear that “the harassing comments and attempt to grope and hit her was beyond what a person in Gardner’s position should expect of patients in a nursing home.”
The Fifth Circuit reverses
On appeal, the Fifth Circuit emphasized the “complication” that arises from the fact that the harasser was a resident of an assisted living facility suffering from dementia.
The court acknowledged the difficult issue of deciding “what separates legally actionable harassment from conduct that one should reasonably expect when assisting people suffering from dementia.”
Considering all of the facts, the Fifth Circuit concluded the issue needed to be decided by jury. “A jury could conclude that an objectively reasonable caregiver would not expect a patient to grope her daily, injure her so badly that she could not work for three months, and have her complaints met with laughter and dismissal by the administration.”
This decision emphasizes the importance of an employee who is being harassed by a third-party reporting that to her superiors and asking for assistance.
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