Employers Must Protect Employees from Third-Party Harassment


A recent case reminds employers that they must take reasonable steps to protect employees from third-party harassment, including from patients with mental illness.

In Davis v. Elwyn of Pennsylvania and Delaware, the employee worked with patients with severe mental, developmental, behavioral or physical disabilities. A patient with severe behavioral disorders regularly called the employee racial slurs, and acted in sexually inappropriate ways with her and others. The employee asked the facility director for guidance and was told to ignore the behavior. She and others were told to “tap out,” meaning to ask to be relieved of responsibility for the patient, when they reached their limits, but were not offered any additional help or support to stop the patient’s behavior or protect the employees. After another incident in which the employee twice asked her on-duty supervisor for help because of her fear that the irate and uncontrolled patient would become physical, but was refused, she ended up being terminated for failing to follow her supervisor’s order to care for the patient. She then sued for hostile work environment harassment, among other things.

The U.S. Court of Appeals for the Third Circuit rejected the employer’s argument that a reasonable caretaker in a locked down psychiatric institute should not have been affected, and further that it changed its treatment strategy for the patient several times to try to protect its staff, but that he harassed everyone so that they could not reassign everyone who provided care for him. Specifically, the Third Circuit noted that the on-duty supervisor ordered the employee “to reenter an intolerably harassing and perhaps even dangerous situation.” It went on to note that “a reasonable employee could expect to receive support and protection from her employer rather than instructions to submit to dehumanizing and potentially dangerous behavior.” Thus, the Third Circuit found that the employee’s claim for hostile work environment harassment should not be dismissed.

This case has several lessons for employers. The context of the work environment is important – in this case, because of the patients’ mental illness, there was no way to prevent them from engaging in inappropriate conduct towards the employees. Employees in that type of environment can reasonably be expected to tolerate some inappropriate behavior. However, the employer must still step in to protect the employee when the behaviors become extreme – and certainly when an employee’s safety is at stake.