Third-Party Harassment Ruling by Fifth Circuit Serves as Reminder That Employer Can Be Liable if It Fails To Act

A recent decision by the U.S. Court of Appeals for the Fifth Circuit serves as a timely reminder that an employer can be held liable for sexual harassment perpetrated not by an employee, but by a third party, if the employer knew about the conduct but declined to take action to prevent and correct it or protect its employees.

In this case, Gardner v. CLC of Pascagoula, L.L.C., No. 17-60072 (5th Cir. June 29, 2018), the court said the employer can be found liable even though the affected employee – a health care aide – had considerable experience in dealing with “physically combative or sexually aggressive” patients, finding that the alleged harassment perpetrated by a belligerent patient well exceeded what the plaintiff should have come to expect even given the “unique” nature of her job.

A copy of the Fifth Circuit’s decision in Gardner is available here.

Members of the Center for Workplace Compliance (CWC) can read more here.