You might remember our recent blog about the parrot kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended attending female nurse. We asked whether an employer can be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by, for example, a parrot, a co-worker, or a mail deliverer? The nurse’s complaints to her supervisor were laughed off, but she got the last laugh because the court found a hostile work environment based upon sexual harassment.
We received a few comments from readers who thought that we were kidding. We weren’t. And what’s more, a recent guidance letter from the EEOC dealt with this same issue, although it wasn’t about a parrot. The exact issue about which the EEOC was asked its guidance was whether a municipality has any obligations relating to hostile work environment under Title VII when a citizen harasses a police officer.
In a guidance letter, the EEOC, citing the case of Cromer Food, commented that “courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.” Same as the parrot case.
As to the more difficult issue involving citizen harassment of public employees, the EEOC found no precedent, and so looked to the situation where courts dealt with prisons sought to be held liable under Title VII for harassment of a prison employee by inmates. While noting the “practical and constitutional limits on the steps [the prison] can take to protect staff from inmate harassment” the EEOC quoted one federal appeals court which stated the "general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct. … Although some harassment by inmates cannot be reasonably avoided, [a prison], on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates."
The EEOC’s letter stated that with respect to the difficult case of citizen harassment of police officers, there are “constitutional constraints prohibiting the [the infringement of] the rights of citizens,” but that there could be Title VII liability based upon “the reasonableness of the employer’s corrective action [which] would depend on the totality of the circumstances.” These circumstances could include the nature of the harassment, the specific context, and the practical limitations on the employer’s ability to respond.
However, the EEOC concluded that “Depending on the facts of a particular case, a city likely would not be liable under Title VII for citizen harassment of a law enforcement officer where the city had taken reasonable corrective action under the circumstances.”