Care Facility May Be Liable for Resident’s Harassment – under Title VII and the Minnesota Human Rights Act.
The United States Court of Appeals for the Eighth Circuit has recently decided that a residential care facility may be responsible for sexual harassment by its residents. Certain employees of defendant, a for-profit organization operating residential programs for individuals with developmental disabilities, filed claims under Title VII and the Minnesota Human Rights Act.
The organization opened a new facility to provide residential care to individuals diagnosed with mental retardation and autism. One of its residents was a 16-year-old male who stood six feet tall and weighed more than 200 pounds, yet functioned at the level of a five-year-old. During the first month the facility was open, that resident physically attacked the employees, groped several female employees and exposed himself on several occasions. After several instances, one of the employees reported these events to a supervisor and to the organization’s corporate offices, requesting that the employer immediately provide additional training to employees to address this type of behavior.
The supervisor reviewed the reports and scheduled a meeting with a behavioral consultant. At the meeting, the behavioral consultant allegedly joked about the attacks. Although the organization continued to investigate the situation and promised an adequate response, its operating procedure was not altered and the incidents continued throughout the next two months. Eventually, as part of the investigation, one of the employees was asked to participate in an observation session in which she would let the resident grab her so the executives could view the conduct. She refused to cooperate and quit her employment.
Three employees filed a lawsuit alleging that the employer had a duty under Title VII and the Minnesota Human Rights Act to take prompt and appropriate corrective action to protect employees from the resident’s behavior but failed to do so, thus creating a hostile working environment. The District Court found a lack of sexual harassment and granted summary judgment in favor of the employer. The District Court held that the employer did not intend to create an abusive working environment because of its inability to control the behavior.
The Court of Appeals focused upon the employer’s conduct in response to the complaints rather than the behavior itself. Based upon the dubious request for the observation session and the alleged inappropriate remarks from the behavioral consultant, the Court determined that the adequacy of the response was a question for the jury. Intent to create an abusive working environment was not necessary to maintain such a claim. The Court found that, although the employer did not have immediate control over the resident’s conduct, it was aware of his behavior and had the ability to alter the environment to a substantial degree by providing additional staff, more training or emergency backup procedures. Although the employer challenged the effectiveness of these options, the case was remanded for further factual determinations.
This case highlights the responsibility of an organization for the actions of individuals beyond its employees, supervisors or agents. An employer may be liable to its employees for harassing conduct of third parties where the employer was aware of the conduct and failed to take immediate and appropriate action. Where the employer lacks the ability to discipline or discharge the harasser, it still must take whatever actions are within its power. Regardless of the source of the harassment, the best policy is to take any report or complaint seriously and respond with immediate corrective action.