Employees Harassed by Third-Parties: Male Prisoners Harassing Female Correctional Employees

The Eleventh Circuit, Judge Pryor writing for the unanimous panel, recognized that a correctional facility is responsible under Title VII for sex harassment of female employees by prisoners. In Beckford v. Dep’t of Corrections, State of Florida, 2010 U.S. App. LEXIS 9452 (11th Cir. May 7, 2010), the court finds that it is black letter law that employers may be held liable under Title VII for harassment by third-parties when the conduct of the third-parties creates a hostile work environment. Further, the court refuses “the invitation of the Department to treat inmates differently from other third-party harassers and prisons differently from other employers under Title VII.” In refusing to exclude prisons from the line of cases holding an employer responsible for third-party harassment, the court states: “Although some harassment by inmates cannot be reasonably avoided, the Department, on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates.” Additionally, the court makes short shrift of the Department’s arguments that the harassment of employees by inmates was not based on sex. For example, the court, aligning itself with the Ninth Circuit’s holding in Freitag v. Ayers, 468 F.3d 528, 540 (9th Cir. 2006), that “exhibitionistic masturbation, especially gunning, is sex based and highly offensive conduct.” Finally, the court finds that because the employees in the instant case are complaining of harassment by someone other than a supervisor, the Faragher affirmative defense is not available to the Department, relying on the holding in Erickson v. Wisconsin Dep’t of Corrections, 469 F.3d 600, 604 (7th Cir. 2006) (“One standard exists for harassment by supervisors and another for harassment by co-workers” and third-parties).

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