Last year, the U.S. Equal Employment Opportunity Commission sued a long-term care facility claiming that certain White patients/residents repeatedly directed offensive racial slurs at black nurses and nurse assistants, including “n—-r,” “coon,” “monkey,” and “Black b—–s.” One patient repeatedly told Black employees to “go back to Africa,” followed Black employees throughout the facility to racially berate them, and physically assaulted Black employees because of their race.
The defendant answered the complaint filed against it in federal court and then immediately moved for judgment on the pleadings and argued to the court that the EEOC’s complaint failed to state a claim upon which relief may be based. Why? Because the defendant can’t “fire” or “discipline” residents, and federal regulations limit the prophylactic steps a long-term care facility can take to curtail unruly patient behavior.
The law is clear that employers may be held liable for harassment by third parties when that conduct creates a hostile work environment and the employer knew or reasonably should have known about the harassment and failed to take remedial action.
Even when that “third party” is a bird.
Borrowing from an earlier Seventh Circuit decision, here is how the federal judge explained it to the defendant.
[I]t 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. Employees are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use (or failure to use) these options that makes an employer responsible…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.
Other courts have held that other long-term facilities may be liable under Title VII for hostile work environment claims, even when cognitively impaired patients are the harassers, provided that some remedial measure remains available.
You may not run a long-term facility or a pet store. Still, your business, too, has an affirmative obligation to take reasonable, remedial steps to address harassment in the workplace once on notice, no matter the culprit.
Whether human or bird, apparently.