We don’t mean to keep flogging the oft-cited vulgar (and annoying) parrot case but it makes a point. A parrot was kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended female nurse. The nurse complained, nothing was done to remedy the situation, and the nurse sued for sexual harassment.
She won, because as we repeatedly remind readers, there is a concept known as “third-party harassment” where, 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.” The parrot may have been a harasser, but the hospital was liable.
A new decision from a federal appeals court makes the same point. Plaintiff was employed as a detention officer by a private firm, MVM, that provided security services to, among others, the Bureau of Immigration and Customs Enforcement (“ICE”). Plaintiff worked with ICE agents, but was supervised by her company. She reported to her supervisor that an ICE agent was "bothering" her with phone calls, and asked the supervisor to remove her number from the list – which he could not do because that was contrary to policy.
She later reported that the same ICE agent “grabbed her and started kissing her against her will. He touched her all over. She tried to push him off her but could not. He stopped when [another employee] got back.” She sued the company for, among other things, sexual harassment.
The Court rejected her claim because there was no evidence that the company was on notice of the phone calls being sexually harassing, only bothersome, and so the later physical assault could not be attributed to the company.
But for our purposes, the Court re-affirmed the concept of third-party harassment: “the accused harasser … was not an MVM employee like [Plaintiff]. But because, as we have just said, employers must provide their personnel with a harassment-free workplace, they may be on the hook for a nonemployee’s sexually-harassing behavior under certain conditions – one of which being that they knew or should have known about the harassment and yet failed to take prompt steps to stop it (emphasis added).”
Take-away: Even though the parrot and the ICE agent were not employees, the fact that they were both harassers could render the employer liable just as if they had been employees.