We recently read an Associated Press report about a female prison guard in Iowa who sued prison officials on these grounds, claiming that the movies caused the inmates to become sexually aggressive. She filed complaints with the officials and alleges that when they finally acted by largely barring movies with sexually explicit content, inmates blamed her for this and subjected her to insults and threats to kill her, and threw urine on her.  

Third-Party Harassment

This kind of claim is known as “third-party harassment,” and was the topic for our blog on December 27, 2012. We reminded readers that, as the EEOC stated recently, “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 (emphasis added).”  

Citizen Harassment of Public Employees

The situation of our prison guard is within a subset of “third-party harassment” claims known as “citizen harassment of public employee” claims.  These cases are difficult because a municipal employer has little control over acts of citizens who harass government employees. 

There have not been many cases involving “citizen harassment of public employees.”  The one we spoke of on December 27^th involved a public employee who claimed that she was sexually harassed at a public meeting because the commissioners conducting the meeting, at which she was secretary, “failed to protect her from criticism” leveled at her from two county residents. She lost her case, but we speculated that if the residents, instead of merely criticizing her, had made sexually harassing comments to her, we might well be within the realm of actionable “citizen harassment of public employees.”

Harassment of Peace Officers

This is where a line of cases arising out of the harassment of prison employees comes in, which we discussed on November 19, 2012.   In a recent guidance letter involving harassment of police officers by citizens, the EEOC cited the case of Cromer Food, but found no cases involving police officers, so instead looked to Title VII cases where prisons were sued for harassment of employees 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."

Conclusion of the EEOC

The EEOC concluded 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.

The lawyer for our prison guard said that her lawsuit is aimed at forcing the prison administration to create a workplace environment that is free from sexual harassment and threats of violence from inmates, and to allow employees to file complaints without fear of retaliation. “No private employer could get away with this,” she said.

So — does our prison guard have a good case?   Maybe — it seems to us that the case will likely turn on the ultimate findings of fact, and the reasonableness of the prison officials permitting the inmates to watch the offending videos.  Also likely will be expert witness testimony on the effect of such videos, which may end up in the thicket of the current (and endless) debate on whether there is a cause and effect between video watching and violent behavior.