Preventing Third Party Harassment

By Matthew G. Dunning

While most employers are aware of their legal obligation to protect employees from harassment by co-workers, supervisors, and managers, a recent case from Mississippi highlights the need to prevent harassment by third parties, including patients and customers. Previous cases have involved harassment by customers at restaurants and casinos, with differing results based on the specific facts.

The plaintiff from the case in Mississippi worked as a CNA for an assisted living center, and was assigned to care for a patient with dementia who had a history of violent and sexual behavior toward patients and employees. The plaintiff alleged that the patient repeatedly made sexual comments and requests, and that he would physically grab her. Management was aware of the behavior based on employee complaints, documentation in the patient’s chart, and firsthand observation. The plaintiff was ultimately terminated for allegedly taking a swing at the patient in a particularly abusive incident during which she was groped and punched repeatedly. Following another incident with a fellow resident, the patient was moved to a nearby all-male facility. Based on affidavits, deposition testimony, and other documentation, the lower court granted summary judgment to the assisted living center, and dismissed the case.

On appeal, the Fifth Circuit noted that Title VII does not prohibit all harassment; a plaintiff must subjectively believe there is severe and pervasive harassment, and the plaintiff’s belief must be objectively reasonable. Previous cases involving repeated verbal sexual harassment by home health and nursing home patients were determined not to be sufficiently severe and pervasive when the conduct was not “physically threatening or humiliating, and did not pervade the work experience of a reasonable nursing home employee.”  That is, potential liability must be considered in light of the specific environment, and the “unique circumstances involved in caring for mentally diseased elderly patients.”  The appeals court held that, contrary to the lower court’s opinion, the allegations of persistent and often physical harassment in this case were sufficient to send the case to a jury.  “The ultimate focus of Title VII liability is on the employer’s conduct; in the case of alleged harassment by a third party, “a plaintiff needs to show that the employer knew or should have known about the hostile work environment, yet allowed it to persist.”

Regardless of potential legal liability, employers should take care to protect employees from this type of behavior. Mandatory training regarding sexual and other harassment should be provided to all employees, and a clear and effective policy and complaint mechanism should be in place so an employee has the opportunity to make allegations, and have them addressed. Supervisory and management personnel should receive separate training on how to recognize harassment and other discrimination, and human resources personnel should be trained on conducting investigations and recommending action by management that will prevent the harassment from continuing.

© 2018 Vandenack Weaver LLC

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Age Discrimination Complaints Must Be Specific

Discrimination Protection: The Age Discrimination in Employment Act forbids age discrimination against employees who are age 40 or older. Discrimination based on age involves treatment by an employer when an employee is treated less favorably because of his or her age. Age discrimination can include any aspect of employment including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.

Employment Policies. An employer’s policy can be discriminatory even when it applies to employees of all ages if it has a negative impact on individuals who are age 40 or older and there is no basis in a reasonable factor other than age.
Trends in Legal Practice. Following a lawsuit in Chicago earlier this year where an adjunct professor was not hired because of her age (66), the Equal Employment Opportunity Commission (“EEOC”) has proposed a regulation to remove birth and graduation dates from job applications. While the status of this regulation is currently unclear it is important for employers and employees to understand their rights. The standard under Nebraska law to establish a claim of intentional age discrimination allows a plaintiff to either present direct evidence of such discrimination or prove his or her claim through circumstantial evidence using the familiar McDonnell Douglas burden-shifting framework. An employee must then prove a causal connection between the alleged discriminatory actions and the resulting negative impact suffered. This action must be based on a specific business practice or particular policy and cannot be sustained by a mere allegation of multiple scenarios which could be determined to be age discrimination. Additionally, age cannot be a pretext when an employer is able to prove other reasons for their negative actions.

Nebraska does allow age to factor into an employer’s decision or policy when the requirements of the job would reasonably require an individual of a certain age.

© 2017 Vandenack Weaver LLC
For more information, Contact Us