Context Matters for Sexual Harassment Claims

Whether sexually-based conduct constitutes sexual harassment in violation of Title VII may depend on the situation in which it occurs, the U.S. Court of Appeals for the Fifth Circuit recently explained.

In Landry v. Leesville Rehabilitation Hospital, a patient inappropriately touched a nurse and made a sexual comment about her. Following her termination for aggressive personal interactions with that patient and others, the nurse sued, alleging among other things, that she had been subjected to a sexually hostile work environment based on the patient’s conduct.

In rejecting the nurse’s claim, the Fifth Circuit focused on the context of the conduct, noting that the “unique nature” of care facilities is relevant in weighing whether such conduct is sufficiently severe or pervasive to constitute sexual harassment. The Fifth Circuit recognized that, as stated in the employee handbook, inappropriate sexual conduct is, unfortunately, not uncommon with patients suffering from illness and diminished capacity. And in that context, the patient’s conduct towards the nurse, while offensive, was not severe enough and, given that it involved only two incidents, was not pervasive enough to be considered illegal sexual harassment.

Employers should be warned, however, that this case does not mean that they can simply ignore complaints of sexual conduct from patients or in other circumstances where sexual conduct might be expected (for example, see our blog post on sex shop workers who sought to unionize in part because they were subjected to sexual harassment by customers). Employers must still take reasonable steps to protect their employees from third-party harassment.