The United States District Court for the District of Hawaii recently reiterated what several courts have already held: “An employer is liable for harassing conduct by non-employees where the employer knew or should have known of the conduct, but fails to take appropriate remedial measures.” Employers have an obligation to protect their employees from non-employees, as well as from co-workers, with whom they work.
The plaintiff in Wilson v. Fresenius Medical Care Oahu, LLC, Martha Wilson was a clinical manager in a dialysis center responsible for coordinating patient care. During her employment, Wilson claimed a patient of the dialysis center subjected her to sexual harassment. On one occasion, the patient became angry, said “F-U” to Wilson, and called her a disrespectful name. Wilson claimed she feared the patient was going to hit her because while he was yelling he stood up and removed his blood pressure cuff.
The following day, the patient told a social worker about the incident with Wilson. About a week later, the Director of Practice Operations met with the patient to discuss his complaint about Wilson. On his way out of the clinic, the patient saw Wilson, became upset, and again said “F-U” and called her the same disrespectful name. A few weeks later, the patient filed a complaint with the Hawaii Department of Commerce and Consumer Affairs in an effort to have Wilson’s nursing license revoked. Wilson claimed she had repeatedly complained about the patient’s behavior to the Director of Practice Operations, but he did nothing about it.
A few weeks later, Wilson contacted the Director of Practice Operations and the Clinical Medical Director about changing the patient’s treatment time in order to avoid being alone with him in the clinic. The patient opposed the change, and Wilson was instructed not to move the treatment time. Despite the instruction, Wilson moved the treatment time so she would not be alone with the patient. As a result, she was suspended. She opposed her suspension and continued to complain about the patient’s conduct. Wilson went on stress leave the day after her suspension. Upon her return about three months later, the defendant terminated her employment.
After her termination, Wilson filed a hostile work environment complaint against her employer, claiming her employer had ratified the patient’s harassment by failing to adequately investigate her complaint and by terminating her employment instead of taking corrective action toward the patient. Ultimately, the court held that Wilson had put forth enough evidence to submit the case to a jury to determine whether the patient had created a hostile work environment based on sex, and whether the employer was liable for failing to take adequate remedial measures.
The law protects employees from harassment based on gender and other protected characteristics. If you have been discharged or otherwise harmed by harassment by a co-worker or a non-employee, you should contact one of our experienced sexual harassment lawyers to discuss your potential rights and remedies. We may be able to help you before litigation becomes necessary.