by Art Gutman Ph.D., Professor, Florida Institute of Technology

On May 7 2010, the 11th Circuit affirmed a district court judgment of $630,000 for 14 women (12 nurses, 1 doctor & 1 classification officer) on grounds of third-party sexual harassment. The case is Beckford v. Florida Department of Corrections (DOC) [2010 U.S. App. LEXIS 9452]. In the interest of full disclosure, I was an expert for the plaintiff’s attorneys in this case. I spent many hours reviewing nearly hundreds of pages of documents, including depositions. My task was to evaluate the DOC policy for preventing and correcting sexual harassment. My conclusion was that as written, the policy was pristine, including a special section on third-party harassment. The problem was, the DOC did not consider prison inmates as third parties, and they were the harassers. Here’s what happened.

The women worked in “close management” dorms reserved for male inmates considered too great a safety threat for placement in the general prison population. The prisoners routinely masturbated at the women (called “gunning”) and directed foul sexually explicit language at them using words I will leave to the reader’s imagination. The women wrote DRs (disciplinary reports) and complained on numerous occasions to high-level management, including the warden and state officials. The record shows that one male captain told the women that the inmates were in their “living rooms” and could do what they please. Other male employees commented that the women should feel “complimented” by the gunning. Corrective measures were never taken.

The DOC argued that prisons are exempt from Title VII rules governing third-party harassment, to which the court responded “We refuse the invitation of the department to treat inmates differently from other third-party harassers and prisons differently from other employers under Title VII.” The court also rejected the “equal opportunity harassment” defense that prisoners harassed men and women alike, and therefore, the harassment was not because of sex. Bottom line: the 11th Circuit affirmed the district court’s ruling that the DOC “unreasonably failed to take steps to stop or mitigate the harassment.”

The moral is simple. Employers are liable if they fail to take corrective actions for harassment by any third party, including customers, contractors, visitors, etc.

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