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EEOC letter stresses that reasonableness of employer’s corrective action governs Title VII liability for non-employee harassment of employees

When it comes to harassment of employees by non-employees, an informal discussion letter released by the Equal Employment Opportunity Commission (EEOC) serves as a reminder to employers that liability under Title VII of the Civil Rights Act of 1964 often turns on the reasonableness of corrective actions taken by the employer. The letter concludes that an employer is unlikely to avoid Title VII liability for failing to take reasonable steps to curtail citizen harassment of police officers, even in the face of its limited ability to control such harassment and constraints due to citizens’ constitutional rights.

Question posed. The letter, released on November 7, responds to an inquiry seeking guidance with regard to what, if any, obligations are imposed on a city by Title VII “to control the actions of citizens during the investigatory, detention or arrest process,” and whether EEOC v Cromer Food Sers, Inc, 414 Fed. Appx. 602 (4thCir 2011; unpublished) applies to such circumstances.

Harassment by non-employees. Writing for the commission, EEOC Assistant Legal Counsel Carol Miaskoff underscored that an employer may be liable for harassment of employees by non-employees if the employer knew or should have known about the harassment and failed to take appropriate corrective action to end it. She also acknowledged that a city’s ability to respond to citizen harassment of law enforcement officers may be limited by the constitutional rights of citizens as well as “practical limits” on the ability of the city to control citizen harassment.

Prison cases. In the absence of case law regarding citizen harassment of law enforcement officers in the community, Miaskoff turned to court decisions holding that a prison may be found liable under Title VII for inmate harassment of prison employees. In Beckford v Department of Corrections (11thCir 2010), the court rejected the notion that prisons are exempt from Title VII liability for inmate harassment of employees, she noted. “Although acknowledging that prisons may face practical and constitutional limits on the steps they can take to protect staff from inmate harassment, the court concluded that the ‘general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct,’” Miaskoff wrote. While some harassment by inmates cannot reasonably be avoided, a prison cannot refuse to adopt reasonable measures designed to curtail harassment by inmates, she explained, citing additional case law.

Reasonable steps to curtail harassment. In line with this case law, “it would not appear that an employer would be exempt from Title VII liability for failing to take reasonable steps to curtail citizen harassment of law enforcement officers,” the EEOC attorney suggested. “As with other cases involving harassment by non-employees, however, the reasonableness of the employer’s corrective action would depend on the totality of the circumstances.” Factors taken into consideration would include:

  • the nature of the alleged harassment;
  • the specific context in which it arose; and
  • practical limitations on the employer’s ability to respond to the harassment, such as constitutional constraints on the city or on another public employer.

“Depending on the facts of a particular case, a city likely would not be liable under Title VII for citizen harassment of a law enforcement officer where the city had taken reasonable corrective action under the circumstances,” Miaskoff said.

The EEOC’s letter regarding harassment by third party members of the public, dated October 1, 2012, is not considered a formal opinion of the commission, but rather is an informal discussion of the issues.