I have long presented students (and employers) with the following real-life fact pattern taken from an appellate case: a parrot who was kept by a patient in an expensive long term care facility repeatedly shouted sexual imprecations to the attending female nurse, who was none too happy about it. She complained to her supervisor who laughed her off. She sued for sexual harassment. I always ask the simple question: Can the parrot be liable for sexual harassment?
Most listeners laughed, just as the nurse’s boss did. How can a parrot be liable, and how can you collect damages from a parrot?
However, those who understood what sexual harassment is about correctly changed the question into: Can an employer be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by a co-worker, or a mail deliverer or even by a parrot?
Posed that way, the answer becomes more obvious and less laughable.
A recent case nicely illustrates this point. In Oregon, an 84 year old retail customer hanging out near the employee time clock in a large grocery store repeatedly groped three female employees – sometimes multiple times daily. One of the employees unsuccessfully complained to management to ban the customer from the store. The EEOC thereafter filed a lawsuit on behalf of the employees, alleging that the employer created a sexually hostile work environment. The case is pending. EEOC v. Fred Meyer Stores Inc.
The moral of the story is simple -- a hostile work environment can be created in any way or by any means if the employer does not address an employee complaint that the workplace is hostile.
Even if the parrot is judgment proof.
(P.S. The groping customer passed away after pleading guilty to criminal charges).