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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Are Home Health Aides Protected From Sexual Harassment By Clients Of Their Employer?

home health aide taking care of grandparent

Having litigated sexual harassment cases for nearly twenty years, our Marion County, Florida sexual harassment attorneys have learned that home health aids are particularly vulnerable to sexual harassment from the clients of their employer.  Because they generally work alone in the home of a client of their employer, employers often fail to protect home health aids from sexual harassment by clients.  In many cases, employers claim that they are not responsible for the sexually harassing behavior of their clients because, unlike with their own employees, they do not have control over their clients.  Without such control, employers maintain, they cannot be held liable for the harassment of an employee by a non-employee.  Courts have consistently rejected this argument.

Under Title VII of the Civil Rights Act of 1964 (Title VII), once an employer knows or should know of sexually harassing behavior by a client towards an employee, a remedial obligation kicks in.  Title VII imposes an obligation on the employer to take prompt corrective action that is reasonably calculated to end the harassment and prevent the harassment from reoccurring.  If an employer is aware or should be aware of sexually harassing behavior by a client towards an employee and takes no remedial action or takes inadequate remedial action to prevent recurrence of the harassment, then the employer can be held liable for the harassment.

Home Health Aide Sexually Harassed

The decision by the U.S. District Court for Delaware in Poe-Smith v. Epic Health Services, Inc., No. 16-660 (D. Del. Mar. 8, 2017) is instructive in showing that employers are obligated to protect home health aids from sexual harassment by their clients.  In that case, Anita Poe-Smith (Poe-Smith) brought a sexual harassment lawsuit against her employer, Epic Health Services, Inc. (Epic), pursuant to Title VII.  Poe-Smith claimed that Epic violated Title VII by failing to protect her from sexually harassing behavior from its client after Epic knew or should have known of the harassment.

Poe-Smith was employed by Epic as a home health aide.  In February 2015, she was assigned by Epic to work for a client of Epic, a man named Weigand.  Poe-Smith worked in Weigand’s home.  Poe-Smith claimed that from February 2015 until May 2015, Weigand sexually harassed her by directing sexual innuendos and inappropriate comments towards her.  Poe-Smith alleged that Weigand’s inappropriate sexual behavior culminated on May 12, 2015, when he physically assaulted her.  On this occasion, according to Poe-Smith, Weigand “bought her a maid’s costume” and “told her she would have to model it.”  When Poe-Smith left the room, Weigand followed her and then pushed her on her shoulders with full force causing her to fall forward.  Weigand then smacked her on the buttocks.

Poe-Smith reported the incident to Epic on May 15, 2015.  Poe-Smith admitted that this was the first occasion that she complained about Weigand’s sexually harassing behavior.  However, Poe-Smith claimed that Epic should have been aware of Weigand sexual behavior based on his interactions with a supervisor at Epic.  In particular, Poe-Smith alleged that Weigand had been calling her supervisor, a woman named Williams, on the telephone and sexually harassing her during that time that Poe-Smith was working in Weigand’s home.  Poe-Smith also asserted that Weigand called Williams to ask whether he could give Poe-Smith gifts, such as a pedicure.

In the days after Poe-Smith reported Weigand’s sexual behavior, Epic offered her a new assignment.  Poe-Smith declined the initial offer because the job started at 7:30 a.m. and was an hour from her home. After that initial offer, Epic continued to give her “offers for assignments that were only two to three hours sporadically or serving as a back-up aid.”  In late May 2015, Epic offered Poe-Smith another full-time assignment, which she also turned down.  Then, in June 2015, Poe-Smith accepted a full-time assignment from Epic.

Employer Should Have Known Of Harassment

Epic filed a motion with the trial court seeking dismissal of Poe-Smith’s sexual harassment claim.  In doing so, Epic argued that it could not be held liable for Weigand’s sexually harassing behavior because he was not employed by Epic.  Epic further argued that even if it could be held liable for the harassment of an employee by a non-employee, it was not liable for Weigand’s sexually harassing behavior because it stopped the harassment by reliving Poe-Smith of her assignment after she initially complained about Weigand’s conduct.  In other words, Epic maintained that it was not liable for the harassment because it took prompt and effective remedial action after becoming aware of Weigand’s sexually harassing behavior.  The trial court denied Epic’s motion for dismissal and ruled that Poe-Smith had alleged sufficient facts to establish Epic’s liability for the harassment.

In denying Epic’s motion for dismissal, the trial court explained that courts have consistently determined that an employer is liable for the harassment of an employee by a non-employee when the employer knows or should know of the harassment and fails to take effective remedial action to prevent the harassment from continuing.  In applying this standard, the trial court pointed out that if Poe-Smith could “prove” that Epic should have been aware of Weigand’s sexually harassing behavior before her initial complaint, then Epic “may be liable” for the harassment.

The trial court found that Poe-Smith adequately alleged that Epic should have been aware of Weigand’s sexually harassing behavior before she complained by claiming that Weigand sexually harassed her supervisor during the time that he was sexually harassing her.  Indeed, the trial court observed that Poe-Smith alleged that when she first reported the harassment to Epic, the supervisor to whom she complained “stated that she was not surprised because Weigand had done the same thing with Williams on the phone.”  Based on these allegations, the trial court explained, it was plausible that Epic should have known of Weigand’s sexually harassing behavior before Poe-Smith complained about the behavior.  Under such circumstances, the trial court reasoned, Epic would be liable for Weigand’s sexual conduct because it failed to take prompt and effective remedial action to prevent his sexual behavior from continuing after it should have known of the behavior. 

Lawyer Advocating For Sexual Harassment Rights

Based in Ocala, Florida and representing employees throughout Central Florida, we have been fighting for the rights of sexual harassment victims for nearly twenty years.  If you have been the victim of sexual harassment or have questions about working in a workplace hostile for female employees, please contact our office for a free consultation with our Marion County, Florida sexual harassment attorneys.  Our employment and labor law attorneys take sexual harassment cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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