Welcome to the Higgins Law Firm

Stuart Higgins is a Des Moines-based attorney who practices law throughout the state of Iowa. On this website, you can read his bio, learn about his areas of practice or contact him. Peruse his latest blog entries below.

Sexual Harassment By Patients, Customers and Clients

Can an employee sue her employer for the sexual harassment that she is subjected to by a patient, a customer or a client? In other words, is it unlawful for an employer to fail to stop sexual harassment of an employer by a customer, patient, client or other third party?

The simple answer is “yes.” The law says that an employer can be held liable for the sexual harassment of a third party “where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate correction action.”

This means that if a nurse is subjected to sexual harassment by a patient, complains about the inappropriate conduct to her employer and the employer fails to correct the situation, the employer will be held liable for the harassment. A recent article details the pervasiveness of this type of sexual harassment in the workplace.

This means that if an employee is harassed by regular customer and complains about the treatment to her supervisor, her employer will be liable if it fails to take immediate corrective action.

This law makes sense. Because of this law, an employee doesn’t have to feel helpless in one of these dreadful situations.

Sexual Harassment in the Workplace: An Overview

There have been many news articles over the last couple weeks commenting on the 20th anniversary of sexual harassment suits in this country. While the laws that prohibit sexual harassment have been around longer than 20 years, it was the testimony of Anita Hill during the nomination of Clarence Thomas to the Supreme Court that brought the issue of sexual harassment to Americans’ attention. Anita Hill’s willingness to testify to the Senate Judiciary Committee, a group made up exclusively of white men, about the sexual harassment she had endured  gave many women the strength to stand up against this assault in the workplace. This meant that more suits were filed. While these suits have done much to diminish sexual harassment in the workplace, sexual harassment in the workplace is still pervasive and is devastating to those affected.

What is sexual harassment?

The law defines sexual harassment as “unwelcome” conduct that an employee is subjected to “because of the employee’s sex.” Furthermore, in order to be actionable (illegal), the conduct must be “severe and pervasive.” This is a complicated way of saying that sexual harassment is verbal or physical conduct by an employer, coworker or even a client/customer that is sex-based and effects an employee’s working environment and/or creates a hostile working environment. By saying that the conduct must be “severe or pervasive,” this simply means that to be illegal the conduct must amount to more than simple teasing, offhand comments or isolated incidents that are not very serious.

Examples of Sexual Harassment:

Sexual harassment can take many forms.

  • Sexual advances
  • Requests for sexual favors
  • Gender-based comments (ex: exposure to comments that disparage women including slurs, negative stereotyping and written or graphic material that depicts women in a negative light)
  • Sexually-charged workplace (sexually offensive conduct/language is common and is condoned by management)

Liability of Employer for Sexual Harassment of an Employee:

Whether an employer can be held liable for sexual harassment depends on who was doing the harassing and on what actions were taken by the employer in response to the harassment. 

  • Harassment by a supervisor or manager:
    • When dealing with harassment by a person in a supervisory or managerial position, we must first ask whether the employee-victim suffered a “tangible employment action” as a result of the harassment.
    • What constitutes a “tangible employment action”?
      • “Tangible employment action”= defined to include hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. A tangible employment action can also be found to have occurred when an employee quits as a result of the hostile work environment (this is known as “constructive discharge”)
    • Harassment is by a supervisor or manager and employee suffers a “tangible employment action”: If the sexual harasser is a supervisor/manager and the employee suffers a tangible employment action, the employer is liable.
      • Examples:
        • Supervisor fires or demotes employee after employee rejects supervisor’s sexual advances
        • Employee doesn’t get a promotion because the employee complains about sexual harassment or refuses requests for sexual favors
        • Employee quits because the sexual harassment is unbearable
    • Harassment is by a supervisor or manager but employee does not suffer a “tangible employment action”: Employer is presumptively liable but can avoid liability if it can demonstrate that (1) it exercised reasonable care to prevent and correct any illegal harassing behavior and (2) that the victim-employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harassment
      • Examples:
        • Employee faces sexual harassment from her boss, but she is not fired, passed for promotion and does not quit because the situation is unbearable
        • Employee is sexually harassed but is actually given a promotion despite the hostile work environment
  • Harassment by a coworker, client or customer:
    •  If the sexual harasser is a coworker, client or customer, the employer is liable if it had notice of the harassment and failed to take adequate action to stop the harassment.

 

Employee rights? But isn’t Iowa an at-will state?

Many people believe that because Iowa is an at-will state,employees have no rights  and can be terminated for any reason at all. Luckily, this is not true.

Iowa is commonly referred to as an “at-will state,” which means that unless an employment contract details the duration of the employment relationship and/or under what circumstances an employee can be fired (for example- “good cause”), an employer can pretty much come up with any reason it wants to terminate an employee. This is so even if the reason is for bad cause or no cause at all. To illustrate- an employer can terminate an employee because he doesn’t agree with the employee’s taste in music or, perhaps more realistically, an employer can terminate an employee the first time the employee shows up late for work, even if it only happened once. Furthermore, an employer generally doesn’t even have to tell an employee why they are being terminated or provide any set notice of termination.

Even though Iowa’s status as an at-will state means that employers have great latitude when choosing who to hire and who to fire, the Iowa General Assembly, Congress and the courts have restricted an employer’s discretion in important ways in order to protect employees from unlawful discrimination and/or retaliation.

State and federal laws make it illegal for an employer to discriminate against an employee (or applicant) based on certain personal characteristics of the employee/applicant, including the employee/applicant’s race, color, religion, sex, national origin, creed, national origin, sexual orientation, sexual identity and disability. What this means is that it is illegal for an employer to fail to hire, terminate, treat differently or harass an employee based on the employee’s protected characteristic. For example, it is illegal for an employer not to hire an applicant because the applicant is black or because the applicant is a female. It is illegal for an employer to pay a male employee more than a similarly situated female. It is also illegal for an employee to be sexually harassed by her coworkers or supervisors.

The Iowa Supreme Court has also protected employees by ruling that it is illegal for an employer to terminate an employee if the the termination would frustrate a well-recognized public policy. Essentially what this means is that an employer cannot terminate an employee if the employer terminates the employee after the employee was simply exercising his rights. For example, it is illegal for an employer to terminate an employee who misses work due to jury duty. Similarly, an employer cannot terminate an employee who sought workers compensation benefits for an on-the-job injury. Additionally, statutes prohibit an employee from facing discrimination or being terminated after the employee complained about unlawful discrimination or harassment.

It is important for employees to know their rights as employees. Every employee in Iowa has a right to work in a discrimination-free environment. Work is hard enough without having to deal with stereotypes, bias, sexual harassment and/or different treatment based on a personal characteristic.

 

Employment Law Blog

Welcome to the website for Higgins Law Firm, PLLC, a law firm based in Des Moines, Iowa but that practices throughout the state. It is on this home page that Attorney Stuart Higgins will write about employment law issues in an effort to educate Iowans on their rights in this state as employees. Stay tuned for blog postings detailing the protections offered to Iowans by the Iowa Civil Rights Act, Title VII of the Civil Rights Act of 1964 and subsequent amendments, the Americans with Disabilities Act (ADA) and the common law cause of action for termination as against public policy to name a few.

It is the goal of Attorney Stuart Higgins to help persons who have faced discrimination in the workplace to stand up to their employers or would-be employers. A key to protecting yourself in the workplace is to first know your rights. This blog will help you to do that.

NOTICE: The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. A description or indication of limitation of practice does not mean that any agency or board has certified such lawyer as a specialist or expert in an indicated field of law practice, nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa.