Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by D. Gregory Valenza | The Daily Journal | Jan 20, 2011

Sexual harassment litigation most often involves claims by employees that co-workers or supervisors have created a

“hostile work environment.” But the anti-harassment laws do not stop there. Unlawful workplace harassment also may come at the hands of non-employees, such as customers, vendors, and others who interact with employees.

The typical office environment may not involve significant exposure to third parties’ harassment. But employees who routinely interact with non-employees as part of their jobs risk greater exposure to bad conduct. That risk is compounded when the business inherently involves “hostile work environments.” Jails and psychiatric institutions are at the far end of the hostile workplace scale, but hospitals, nursing homes, casinos, and

even hotels and bars may be included in this group as well. As the Court of Appeal recently discussed in Turman v. Turning Point of Central California Inc., 2010 DJDAR 19101 (Nov. 23, 2010), an employer whose business involves a “hostile work environment” all the time may be held liable for unlawful harassment.

Briefly, both federal and state law prohibit harassment on the basis of sex, race, religion, and other protected statuses. “Harassment” is a term of art, misused when it describes isolated or trivial acts of improper conduct. Rather, harassment occurs only when the victim’s overall work environment becomes “hostile” or “abusive” in the legal sense. This standard requires conduct that is so severe or pervasive that it changes the victim’s employment conditions.

Because employers do not control third parties’ behavior, both federal and California law impose liability for third party harassment based on a negligence standard. The employer is liable only if it knew or should have known about the conduct and failed to take immediate and appropriate action. Therefore, the employer’s efforts to prevent and stop harassment by third parties are critical to preventing liability.

The Court of Appeal’s decision in Turman is a warning to employers tempted to argue harassment is just one of the risks of the job. There, the employer operated “halfway houses,” where prisoners would transition back to society before their full release from

custody. Joyce Turman was a resident monitor at the employer’s Salinas facility from 1999 until 2004.

During the later part of Turman’s employment, male residents routinely would proposition Turman for sex, make sexual gestures, and call her “whore,” “hoe,” “bitch” or worse. Turman complained to her superiors, who in essence told her she should be less strict with the residents or that they were just joking.

Turman sued Turning Point for discrimination and sexual harassment. After trial, the jury decided that although Turman experienced sexual harassment, the employer did not fail to take appropriate action. The trial court entered judgment for the defendant

and Turman appealed.

The Court of Appeal reversed, making the relatively rare finding that there was

insufficient evidence to support the jury’s verdict. Turning Point did not provide evidence of its efforts to stop the harassment from occurring. Instead, Turning Point argued that “harassment by prisoners is inherently part of the job.” The Court of Appeal agreed that male prisoners are likely to harass female employees while in custody. But, the court also held that employers nevertheless must take action in

response to the harassment.

The court in Turman relied on a 9th U.S. Circuit Court of Appeals decision, Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006). There, a guard at Pelican Bay state prison sued based on a hostile work environment theory under Title VII of the Civil Rights Act of 1964. The prison argued that it should be immune from such suits because inmates are by their nature not law-abiding and do not follow society’s rules. As in Turman, the

9th Circuit concluded that although prisoners indeed are likely to harass workers, “[n]othing in the law suggests that prison officials may ignore sexually hostile conduct and refrain from taking corrective actions that would safeguard the rights of the victims, whether they be guards or inmates.”

These decisions make clear that employers generally have a duty to make reasonable efforts to end harassment, even though misconduct is likely to occur. The courts in Freitag and Turman are not alone on this issue. See, Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001) (hospital liable for sexual harassment by psychiatric

patient despite argument that employee “assumed the risk.”).

Compare Turman and Freitag with another 9th Circuit decision, Folkerson v. Circus Circus Enterprises, 107 F.3d 754 (9th Cir. 1997). There, casino customers frequently tried to touch a mime working at the Circus Circus casino in Reno. In response to her

complaints, the casino arranged for other employees to work close by, posted a sign warning patrons not to touch, and gave her the opportunity to call security when she was bothered. The court held “an employer may be held liable for sexual harassment on the part of a private individual, such as the casino patron, where the employer either

ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.” However, the court rejected Folkerson’s retaliation claim after the casino fired her for punching a customer in the mouth. The court found that Circus Circus had taken reasonable measures to

protect her.

So, the argument that a hostile environment claim is barred because the work environment is inherently hostile or abusive, almost always fails. But in Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264 (2006), the plaintiff, a female writer’s assistant, pointed to a great deal of evidence that the work environment was pervasively full of sexual jokes, comments, and other conduct demeaning to women. The workplace in that case, however, was the writers’ offices for the television show, “Friends.” The writers’ meetings indeed were permeated with sexual innuendo, jokes, and other conduct that would make the most seasoned human resources manager wince. But the very purpose of that office was to write a script for a television show that prominently featured sexual innuendo, adult themes, and the like.

Lyle is different from Turman and Freitag, because the plaintiff in Lyle cited nearly no evidence that the abusive conduct was directed at her, or women in general. As such, the plaintiff could not demonstrate the conduct was based on her sex – an essential element of a sexual harassment claim – and lost her case.

In other cases not involving hit sitcoms, the courts have held that harassment is actionable even if the conduct is not specifically directed at the plaintiff, and that sexually charged speech can create a hostile work environment. Lyle appears to apply mainly to employment settings where offensive language and sex-based speech are the essence of the business and the plaintiff is not targeted for mistreatment. Most employers therefore are not going to qualify for heavy reliance on Lyle.

In Turman, Freitag, and Folkerson, the sex-based conduct not only was inherent in the workplace, but also was, to some degree, specifically directed at the respective plaintiffs. Therefore, the courts in those cases found actionable harassment and necessarily focused on the adequacy of the employer’s response.

Even employers in inherently hostile work environments must take responsibility to avoid liability for third-party harassment. To reduce risk, employers must ensure managers and supervisors understand their responsibilities to respond affirmatively to harassment by third parties, even if misconduct is expected. Proper anti-harassment policies and training should include provisions for responding to non-employee conduct. It also is critical to have appropriate complaint procedures in place so employees can bring misconduct to management’s attention before isolated misconduct

becomes actionable as “harassment.”