Thursday, August 19, 2010

It Comes with the Job -- Or not

New Image An increasingly common problem for sexual harassment law is what might be called the “it comes with the job” situation – where the work entails some degree of harassment. Although Lyle v. Warner Bros. Television Prods., 132 P.3d 211 (Cal. 2006). applied a kind of BFOQ analysis to one variation – where the writers for Friends justified a pretty raunchy atmosphere as integral to creating a sexually-themed show -- the courts have generally refused to give employers a free pass in circumstances where the job entails some harassment.

The paradigm situation is prisons, and Beckford v. Dep’t of Corr., 605 F.3d 951 (11th Cir. 2010), is a good example. Consistent with Justice Scalia’s prissiness in Oncale, I won’t provide chapter and verse of the harassment the inmates heaped on the 14 plaintiffs, other than to say that it spanned the gamut of sexual epithets and was capped by “gunning,” which involved the prisoners masturbating and ejaculating directly at the women.

Needless to say, the plaintiffs’ internal complaints fell on deaf ears. Indeed, and quite remarkably, the “corrective” action included the warden’s establishing a “three minute rule,” that is, he allowed his female workers to refuse to help inmates who gunned for more than three minutes. The case went to trial, and the 14 plaintiffs were each awarded $45,000 in damages. The circuit court affirmed. Although incarceration may pose special challenges, the employer – as in all third party harassment – is not liable for the conduct itself but for failure to take reasonable steps to deal with it. As with other employers, prisons must act reasonably to safeguard their employees, whether the harassers are co-workers or prisoners. While prisons are limited in what they can do (for example, they obviously cannot eject inmates!), that does not excuse failure to use the tools available.

Beckford is consistent with other circuits’ holdings. E.g., Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006) (prison liable for inmate’s sexual harassment when it failed to take prompt and immediate corrective actions);

The blogosphere has not done well by Beckford, having  often overstated the reach of the case. Writers have concluded that the court held all employers liable for all third party harassment. And then there’s a blogger, a former corrections officer, who criticized the outcome because gunning is simply part of the job and the women likely were given fair warning of the practice before they started to work.  

In fact, prisons are an extreme version of third party harassers, both in terms of the egregiousness of the harassment that occurs and in terms of the ability of the employer to minimize it. But the problem has arisen in nursing homes (Pickett v. Sheridan Health Care Center, No. 09-3028, 2010 WL 2541186 (7th Cir. June 25, 2010)) and entertainment venues (Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754 (9th Cir. 1997)). In all the settings, the principle is the same, although its application may vary: the employer must take reasonable steps to protect its employees.

Thanks to Caitlin Petry for her assistance with this.


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A classic third-party harasser case talks about how the third-party doesn't even have to be human; in Dunn v. Washington County Hospital (7th Cir. 2005) no. 05-1277 at online, the Court wrote: "Because liability is direct rather than derivative, it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Ability to "control" the actor plays no role. ... Indeed, it makes no difference whether the actor is human. Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital's responsibility to protect its female employees by excluding the offending bird from its premises."

Another "it comes with the job" case in which context appears to affect a decision similar to the Lyle/Friends decision is Coolidge v. Indianapolis (7th Cir. 2007) no. 06-3587 online, involving videos of necrophilia in a manager's desk at a crime laboratory. The Court wrote: "Crime Lab employees frequently worked with corpses, so pornography depicting necrophilia might not have the same shocking overtones there as it would in another setting."

Posted by: kent | Aug 20, 2010 2:43:49 PM

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