I work in a psychiatric hospital. We have been having a problem lately with patients sexually harassing our staff. Some of the clients are mentally retarded or mentally ill, and we’re not sure what to do about the harassment problem.
— Susan
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This is a difficult issue that requires care on the part of employers. Shawna Swanson of Fenwick & West tackles this question head-on:
There was actually a recent case in California that had similar facts to what you’re describing—a bus driver claimed that her passengers, who were mentally disabled patients, harassed her. The court did not give that employer any kind of a break on the basis of the clients’ being mentally disabled, and it did hold the employer accountable for the harassment.
Putting aside the mental disability issue for a moment, it is important to remember that if your employees sue based on harassment by a client, it is you, the employer, who will be liable for the harassment, not the client. This is because you as the employer have an obligation to make sure that your employees are provided an environment free of harassment. The standard for determining when the employer is liable is whether the employer knew or should have known the harassment was occurring, but did not take steps to remedy the harassment.
This rule does not change just because it’s your #1 customer. Admittedly, it can be awkward in a business relationship when you must go to a client and say, ‘Listen, we can’t have you doing this to our employees.’ Despite that awkwardness, you need to do whatever you can to stop the harassment. That may mean telling the client, ‘You need to send someone else to our workplace—that individual who works for you is not welcome here anymore. We need another representative.’ Sometimes it may mean you’ve got to terminate the relationship with the client, if the client is not willing to accede to your request.
Now, to address the issue of clients who are mentally disabled, it can make things a little more troubling, and we may be more sympathetic to the purported harassers because they may not intend to harm or even realize their actions are offensive. But, it’s important to remember that the intent is not what matters; it’s the effect it has on the victims. So even if there are mentally disabled clients or patients who are creating an atmosphere that is hostile for your employees, you still must take steps to address the conduct, even if it means making some hard business decisions.
Shawna Swanson is a partner at the San Francisco office of law firm Fenwick & West.