Sexual Harassment

Can A Bird Be A Sexual Harasser? Does It Have Assets?

The recent appeals court decision recited facts that sound slightly familiar to those folks long-riveted by my parrot tale.

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Stop me if you’ve heard this one before.  A parrot walks into a bar. …

Not that one.

The one about the vulgar parrot in a nursing home. Yep, I admit that I’ve used this story (many times!) to illustrate the issue as to who can be a sexual harasser, an issue raised again in a recent federal appeals court decision.

Can a 400-pound guy sitting on his bed in the basement be a sexual harasser?

Anybody may be a workplace sexual harasser, I noted here before, not just coworkers or others employed by the same company. Actionable sexual harassment is not defined by who is doing it, but if there is a hostile workplace created that remains un-remedied when the employer has notice of it – irrespective of who is doing it. 

Could be a co-worker. Could be the FedEx courier. Could be a client or customer. Or could be that 400-pound guy sitting on his bed in the basement that we’ve heard about (and perhaps sending dirty pics to your work email).

It’s not who, as much as it is what and where. And if the boss knows about it. Unless the boss is doing it.

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Can a bird be a sexual harasser? Should it hide its assets?

I have for years been using the parrot story in my seminars and sexual harassment trainings for employers and employees to illustrate the point that workplace harassers do not have to be supervisors or co-employees of the victim. They can be almost anybody, even a bird.

The storyline: a wealthy patient’s parrot repeatedly shouted sexist vulgarities at a female nurse in a nursing home. She eventually had had a enough and complained to her manager. She was laughed at and fired (“a bird is harassing you?”) and then sued.

The end result: the nursing home was liable for creating or maintaining a hostile workplace for this nurse, even if the harasser was a non-employee, and irrespective of the nature – human or animal – of the harasser.

The parrot, on the other hand, was sort of the equivalent of an unindicted co-conspirator: guilty but not liable. And judgment proof. (Thanks to my law school classmate and friend, Steve Paganuzzi, a NY matrimonial and T&E lawyer, for noting to me the rise of pet trusts – my parrot may soon want to hide his assets offshore).

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The story was – alas – a hypothetical!!

To my chagrin, I later learned that this story – which I always thought was a real case which I simply embellished a little – was only a hypothetical raised by the noted Judge Easterbrook in a 2005 case.  

And, worst of all, it did not even involve a parrot!  Or vulgarities!

The Judge posited:

“Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.”

Oh well. This won’t stop me, however – I’ll continue to tell the story with even more embellishment.

The recent appeals court decision

The recent appeals court decision recited facts that sound slightly familiar to those folks long-riveted by my parrot tale.

The court began its decision with the obvious: “Claims of sexual harassment typically involve the behavior of fellow employees.” It then stated: “But not always.”  True.

For example?

“Customers are one example of third-party harassers. … and [c]asinos seem especially susceptible to these claims, as one case addresses a high roller’s harassment of a cocktail waitress and another a card player’s harassment of a blackjack dealer.”

And how about 400-pound guys?

A digression about hotel workers and naked guests

I recall writing a blog post way back about Seattle hotel workers who started a signature drive “to get a wide range of protections on the ballot … Topping the list are measures to keep guests from sexually harassing staff who clean rooms and deliver room service.” One woman said that “I’m scared because it’s not safe.” Apparently, “[s]he said she has had multiple run-ins with men who crossed the line while she was on the job. In one instance, she went alone on a room service call. ‘He opened the door and he is naked,’ she said.”

Anyway, back to the recent court decision

An elderly resident suffering from dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease (yikes!), “had a reputation for groping female employees and becoming physically aggressive when reprimanded. … he would sexually assault them by grabbing their ‘breast[s], butts, thighs, and try[ing] to grab [their] private areas. … [and] asked for explicit sexual acts on a regular basis and made lewd sexual comments toward female staff.’”

Pretty, pretty, pretty aggressive and harassing.  And management knew about all this. 

An experienced female health aide who became his caregiver was a victim of all of this – and worse – getting groped and punched repeatedly, and eventually ending up in the emergency room due to her injuries. She was out on leave for three months. She was fired upon her return.

The court said that “We must decide when the allegations of harassment nonetheless become so severe or pervasive, and the lack of corrective action so glaring, that fact issues exist requiring a jury to decide the case.” The court held that “the multiple years of unwanted sexual grabbing and explicit comments [she] endured could certainly be deemed severe and pervasive harassment” – i.e., a hostile workplace.

So, the court let the case go to trial.

Really? No kidding? After only “multiple years” of being groped and punched?

The court held that the tormented patient could, in fact, have created a hostile workplace for the tortured health aide.

(What hung up the court was the issue of “what separates legally actionable harassment from conduct that one should reasonably expect when assisting people suffering from dementia,” since “the diminished capacity of patients influences whether the harassment should be perceived as affecting the terms and conditions of employment.” Mercifully, this is not our issue today.)

Takeaway

So, the patient was a sexual harasser, and the 400-pound guy could also be a sexual harasser.

And so could the bird.  Macaw or parrot.

(I still think a parrot fits in with my story better than a macaw).

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

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