An EEOC Reminder: Discrimination by Third Parties is also Illegal

Darrell VanDeusen
Darrell VanDeusen


Let’s start today’s blog with a  brief visit to Employment Discrimination Law 101.  An employer cannot discriminate on the basis of race, sex, color, etc., etc., etc.  Discrimination includes harassment – name calling, epithets, and such stuff – that creates a hostile work environment.   And (yes, I know you know this) an employer is responsible for the actions of all of its employees, not just its supervisors or managers (e.g., co-worker harassment is illegal too).

What employers sometimes forget, however, is that anti-discrimination laws also apply hostile work environments created by customers or other third parties.  Old school reference here:  think of the photocopy repair person who comes to your office and harasses the receptionist.  If that happens, the employer is obligated to take “prompt remedial action calculated to end the harassment.”

But some situations are more challenging.  A recent lawsuit filed by the EEOC against a nursing home in Burlington, Vermont proves the point. 

According to the EEOC’s press release, EEOC v. 98 Starr Road Oper. Co. LLC d/b/a/ Elderwood at Burlington, 2:22-cv-00168 (D.Vt. filed 9/6/22), alleges that management at the nursing home tolerated outrageous racial harassment of its Black nurses and nursing assistants by white patients and residents.  Remember that what I am about to describe is based solely upon the allegations in the EEOC’s complaint; there’s been no findings of fact or court decision on the matter.

The EEOC claims that beginning in March 2020 (apropos of nothing, perhaps, this is also the time the COVID-19 pandemic struck), unidentified (at least in the complaint) white patients and residents would use racially charged epithets and slurs.  In particular, the complaint claims, an unidentified white male resident would call Black employees “n—-rs,” “coons,” “monkeys,” and “Black bitches,” among other things, and told them they should “go back to Africa.”

The complaint alleges that the resident would also engage in this sort of monologue while sitting in a chair in the main hallway of the facility “regardless of who was assigned to take care of him.”

This particular resident’s bad behavior was reported in a local news publication in October 2020.  That article noted “[a]ccording to the resident’s records, his many diagnoses include ‘unspecified dementia with behavioral disturbance.’ Several of the staff members expressed skepticism that the condition was responsible for his conduct, arguing that he appeared cognizant of his past actions. They said management’s only response was to require more training on dementia.”

The Black employees filed charges of racial harassment.  After the EEOC found probable cause and conciliation failed, it filed the lawsuit on their behalf. 

So, what’s an employer to do?   In the normal world of profit and non-profit operations an employer should – indeed must – take steps to tell an unruly customer “you are not welcome here if you speak or act in a way that harasses our employees.  It’s easy when the employer is a grocery store or a fitness center, for example. 

But what to do with a nursing home resident with dementia in the middle of a pandemic?  Assuming the resident has little or no ability to control their comments, does the facility kick that person out?  In the middle of a pandemic?  Putting aside the chance of creating liability, it does seem like a heartless approach.   Do you segregate the Black employees’ so they don’t see or hear the white patient.  Wait… no, that doesn’t work for a number of reasons and just creates additional exposure to liability.

There are a few spots in anti-discrimination laws that present very difficult questions with no good answers.  In a “same but different” category, it is a bit like the employee who claims they need a service dog in the workplace, but a co-worker is allergic to dogs (or dog-phobic).  Who wins that one if there’s no way to create a separate workspace for the employees?    In situations like these I have asked the EEOC “what do you think we should do?”  The usual, unfortunate, answer has been “that’s for you to figure out.”  Great.

The takeaway here?  It will be interesting to see where this case goes over the next year or so and how the facts develop during litigation.  For now, remember that as an employer your obligation to protect your employees from discrimination and harassment is a widely cast net.



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