An Employer May be Liable for Sexual Harassment of an Employee in the Workplace by a Non-Employee

Typically, in a sexual harassment or hostile work environment case, an employee alleges that he or she experienced sexual harassment by a supervisor or by another co-worker. Can an employer also be liable if an employee experiences sexual harassment by a third-party non-employee at the workplace? The answer is yes.

If you believe you have a workplace sexual harassment claim to bring against an employer, you should learn about what constitutes a sexual harassment claim and the steps you should take to start the legal process. There are several sources of information on this topic based on the experience of Kilgore & Kilgore lawyers, who handle these and other types of employment law claims against employers. To read about sexual harassment claims in the workplace, click here Sexual Harassment Lawyers. Read on in this article to see if you have a viable sexual harassment or retaliation claim; if so, to contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

Title VII Protects Employees from Sexual Harassment

Title VII of the Civil Rights Act of 1964 protects employees against sexual harassment and a hostile work environment when the misconduct is attributable to the employee’s sex or other protected characteristic, such as race or religion. The alleged sexual harassment or hostile work environment must be sufficiently severe or pervasive, and must alter the terms and conditions of the employee’s employment, and create an abusive working environment.

To Win a Claim, an Employee Must Prove that the Employer Knew About the Sexual Harassment but Allowed it to Continue

Unless the harasser is a supervisor, the employee must also show that the employer knew or should have known about the sexual harassment, allowed it to continue, and failed to take any corrective action. The ultimate issue in a Title VII case is the employer’s conduct.

Courts have held that an employer can be liable under Title VII when the harasser is a third-party nonemployee, such as a customer, restaurant patron, or casino gambler. For example, a restaurant could potentially be liable under Title VII if it knows that a waitress experienced sexual harassment by a patron, and the restaurant permitted the sexual harassment to continue, and failed to take any corrective action.

A Nursing Home Patient’s Sexual Harassment Led to a Claim of a Hostile Work Environment

The U.S. Court of Appeals for the Fifth Circuit decides appeals from the federal district courts in Texas, Louisiana, and Mississippi. It recently ruled that a jury should decide whether an assisted living facility in Mississippi is liable under Title VII for an alleged hostile work environment created by a nonemployee resident. The case is Gardner v. CLC of Pascagoula, L.L.C.

In Gardner, the plaintiff, a nursing assistant, provided care at the facility for an elderly patient who suffered from a variety of physical and mental illnesses. The facility knew that the patient had a history of violent behavior and sexual behavior toward other patients and staff. The plaintiff allegedly experienced the patient’s inappropriate sexual behavior every day for years. She and other co-workers reported the incidents to their supervisors.

In one incident, the patient allegedly groped and punched the plaintiff. After this incident, the plaintiff’s request to be reassigned was denied. The plaintiff then took three months of leave and was terminated after returning to work.

In Gardner, the Fifth Circuit determined that the frequency and nature of the patient’s violent behavior and sexual behavior would allow a jury to find that a reasonable caregiver would find the conduct sufficiently severe or pervasive under Title VII, even in light of the patient’s dementia.

In addition, the Fifth Circuit found that there was sufficient evidence to show that the plaintiff’s employer knew about the hostile work environment experienced by the plaintiff but failed to take any action to remedy her work situation. The employer, the Fifth Circuit stated, violated its duty to take reasonable steps to protect its employees once it knows that they are subject to abusive behavior.

The Federal Court Reversed the District Court’s Judgement and Remanded the Case

The Fifth Circuit reversed the district court’s summary judgment in favor of the employer. It concluded that the plaintiff’s hostile work environment and retaliation claims under Title VII should go to the jury. Thus, the case was remanded to the district court for further proceedings.

Reach Out to Kilgore & Kilgore’s Employment Law Attorneys

Kilgore & Kilgore understands this issue of workplace sexual harassment and has handled many such cases. Our attorneys have brought claims and won cases for victims of employer abuse. Read the testimonials from former clients who successfully brought their claims, then wrote to Kilgore & Kilgore to express their gratitude, click here Client Testimonials. If you have a viable sexual harassment or retaliation claim you wish to discuss, contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

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