Recently, the U.S. Fifth Circuit Court of Appeals (which covers Mississippi, Louisiana and Texas) considered a sexual harassment case brought by a Certified Nursing Assistant (CAN) against an assisted living facility (ALF). The CNA alleged that during her employment with the facility, she was sexually harassed by a resident in violation of Title VII of the Civil Rights Act. The resident had various diagnoses of physical and mental illness and a “long history of violent and sexual behavior toward both patients and staff…” The resident was more aggressive and sexually inappropriate with female caregivers and would engage in conduct, such as, grabbing their “breasts, butts, thighs, and trying to grab their private areas.” The resident also made lewd comments and asked for sexual acts on a regular basis.
According to the CNA, she was subjected to alleged sexually offensive conduct by the resident “every day.” The CNA documented the resident’s behavior in his chart and complained to supervisory officials. In response to one of her complaints, the facility administrator allegedly told the CNA to “put [her] big girl panties on and go back to work.” The facility had also received complaints about the resident from other staff.
The situation ultimately culminated in an incident where the resident began trying to grope the CNA and touching her breast while she was assisting him out of bed. According to the CNA, when she tried to move away, the resident punched her on the side of her breast. The CNA sought assistance from a co-worker and the resident punched the CNA a second time and began to grab the co-worker’s “private area.” The CNA claims that the resident punched her a third time while she was trying to make his bed following the incident. Thereafter, the CNA refused to work with the resident and asked to be reassigned but her request was denied. The CNA sought treatment for her injuries and did not return to work for three months following the incident.
Shortly after her return to work, the facility terminated the CNA for, among other things, her insubordinate conduct by refusing to care for the resident.
In the deciding the case, the Fifth Circuit began by noting that an employer may be liable for sexual harassment by a nonemployee where the employer knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action. The court also acknowledged that the diminished capacity of a resident influences whether the alleged harassing conduct affects the terms and conditions of an employee’s employment and that these cases involve “the difficult line drawing problem” between actionable sexual harassment and conduct that an employee should expect when working with people with diminished capacity. Ultimately, given the frequency and nature of the resident’s conduct, the effect of the resident’s conduct on the CNA’s employment, and the facility’s failure to attempt to remedy the situation, the court concluded that the CNA could proceed on her sexual harassment claims to trial.
The court pointed out that other facilities dealing with alleged sexual harassment by a resident had successfully avoided liability by taking corrective action, such as, reassigning an employee and offering to remove the patient from the facility. However, in this case, the facility failed to even attempt to remedy the situation and protect its employees once it became aware of the resident’s abusive behavior.
While this case is outside the Eleventh Circuit (which covers Florida) and not binding precedent, it serves as an important reminder for Florida employers that they may be liable for sexual harassment by nonemployees including the residents of a facility and should seek advice from experienced legal counsel in addressing this situation.
EEOC Announces Preliminary FY 2018 Sexual Harassment Data
In Fiscal Year (FY) 2018 (from October 1, 2017 through September 30, 2018), the Equal Employment Opportunity Commission (EEOC) filed 66 harassment lawsuits of which 41 included allegations of sexual harassment. This is more than a 50% increase in the number of sexual harassment lawsuits filed by the EEOC in FY 2017. The EEOC recovered $70 million dollars for the victims of sexual harassment in FY 2018 up from $47.5 million in FY 2017. The EEOC also reported a 12% increase from FY 2017 in the number of Charges filed alleging sexual harassment. This is the first increase in sexual harassment charges in a decade. Sexual harassment is in the EEOC’s crosshairs and employers facing a sexual harassment complaint are urged consult with experienced legal counsel for guidance.