Is An Employer Liable for Harassment by non-employees? This question was inspired by a recent discrimination lawsuit (PDF) filed by a Michigan nurse against her employer, Hurley Medical Center in Flint, Michigan. The lawsuit claims the employer agreed to a man's request that no African-Americans care for his newborn baby.
While most parents of newborns would be more concerned about a nurse or medical provider's qualifications, schooling, experience, training, etc., this new father is alleged to have bypassed these details and told the charge nurse that no African Americans were to take care of his newborn. In support of this request, it is alleged the man then showed the charge nurse a swastika tattoo on his arm. It is not clear if this showing was intended to substantiate the man's request or the ignorance behind the request.
The Complaint further alleges that the employer accommodated the racist request and that at some point, hospital personnel expressly noted in the chart of the newborn the following, "Please, no African-American nurses to care for ... baby per dad's request" (as an aside, beginning a racist request with "please" does not make it any less racist).
Based on these allegations, the plaintiff nurse sued her employer for claims related to racial harassment and discrimination under Michigan and federal law by the employer in accommodating the father's racist request.
Can Employers be Liable for Hostile Environments and Discriminatory Acts of its Customers?
The short answer to the preceding question is "yes," but it is a very long, factually intense, and nuanced analysis that employers need to understand in order to determine their liability and responsibilities for addressing workplace harassment or discrimination by customers or non-employee third parties.
Overview of Hostile Work Environment Legal Issues
Generally an employer will be liable for a hostile work environment if the employee/plaintiff can establish the following elements:
- The individual is a member of a protected class;
- The individual was subjected to harassment, either through words or actions, based on race;
- The harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile or offensive work environment; and
- There exists some basis for liability on the part of the employer.
Additionally, harassment must meet both an objective and a subjective test. This simply means that the at issue conduct must be so severe or pervasive as to constitute a hostile or abusive working environment both to a reasonable person and the actual individual.
Workplace Harassment and Discrimination by Non-Employees
In order for alleged harassment by non-employees, e.g. patients and visitors, to be actionable against an employer, the individual plaintiff must show that the defendant employer failed to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.
Closing Thoughts on Employer Liability for Discriminatory Conduct of Non-employees
The case against Hurley Medical Center was only filed earlier this week and, therefore, it is too premature to assess whether the employer will be held liable for the racist and discriminatory request of a non-employee. Certainly the allegations do not paint a factually favorable picture for the employer. But if you don't have the facts on your side, then argue the law. And legally speaking, it will be interesting what, if any, evidence plaintiff will be able to point to showing a discriminatory animus on the part of management and supervisory personnel of the hospital.
Further, this blog has previously discussed a lawsuit for discrimination based on similar facts against a hospital by its employee (also a nurse) involving discrimination and a hostile work environment created by non-employee patients. In that case, Rawls v. Garden City Hospital, the employee claimed that patients and visitors created a hostile work environment by using racial slurs.
The Rawls case, however, was dismissed in favor of the employer (PDF) and in reaching this decision, the court specifically discussed the reasonable and immediate corrective action taken by the employer. Those actions included removing or offering to remove the plaintiff nurse from the situation by temporarily assigning her to another area of the ER and then quickly treated and discharged the patients. The defendant employer successfully argued that its actions ensured that, on one hand, the plaintiff was no longer subject to further encounters with those patients or visitors, while on the other hand, the patients and visitors received necessary medical treatment.
While the plaintiff was clearly dissatisfied with her employer's response, the Court agreed with the employer that it acted appropriately to remedy or prevent alleged harassment of plaintiff by non-employee patients and visitors.
Regardless of who wins the lawsuit, it is clear that the likely loser in this matter is the baby of the the father who ignited the discrimination lawsuit in the first place. Hopefully that kid will be able to overcome his dad's "values." If not, maybe they will at some point take fashion advice from Mr. Steven Colbert (watch through to the end of the video for the advice).