EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII: Harassment by third party members of the public
October 1, 2012
This is in response to your letter of August 10, 2012, requesting guidance for the City of ____ "with regard to the EEOC's current enforcement position . . . with respect to what, if any, obligations are imposed upon the City by Title VII to control the actions of citizens during the investigatory, detention or arrest process, and specifically whether the principles set forth in the Cromer case are applicable to such situations."
The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, sex, religion, or national origin. Title VII prohibits harassment based on sex, race, or another protected characteristic, where the harassment culminates in a tangible employment action or is sufficiently severe or pervasive to create a hostile work environment. See, e.g., Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), http://eeoc.gov/policy/docs/harassment.html. While the EEOC receives and investigates Title VII charges involving state or local government employers, the U.S. Department of Justice, not EEOC, has authority to bring enforcement litigation based on these charges.
As you note, courts have concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it. See, e.g., 29 C.F.R. § 1604.11(e); EEOC v. Cromer Food Servs., Inc., 414 Fed. Appx. 602 (4th Cir. Mar. 3, 2011) (unpublished). You further note, however, that the City's ability to respond to citizen harassment of law enforcement officers may be limited by citizens' constitutional rights and by practical limits on the City's ability to control citizen harassment.
A number of courts have concluded that a prison may be held liable under Title VII for inmate harassment of prison employees, but I am unaware of any cases addressing citizen harassment of law enforcement officers in the community. In the prison context, the court in Beckford v. Department of Corrections, 605 F.3d 951 (11th Cir. 2010), rejected the defendant's contention that prisons are exempt from Title VII liability for inmate harassment of employees. Although acknowledging that prisons may face practical and constitutional limits on the steps they can take to protect staff from inmate harassment, the court concluded that the "general rule of reasonableness regarding employer liability for third-party harassment under Title VII adequately respects the difficulties that prison officials encounter in controlling inmate conduct." Id. at 959. Thus, "[a]lthough some harassment by inmates cannot be reasonably avoided, [a prison], on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by inmates." Id.; see also Erickson v. Wisconsin Dep't of Corr., 469 F.3d 600, 609 (7th Cir. 2006) (reasonable jury could find that defendant failed to take reasonable steps to prevent inmates' sexual harassment of plaintiff); Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006) ("Nothing in the law suggests that prison officials may ignore sexually hostile conduct and refrain from taking corrective actions that would safeguard the rights of the victims, whether they be guards or inmates.").
Consistent with such case law, it would not appear that an employer would be exempt from Title VII liability for failing to take reasonable steps to curtail citizen harassment of law enforcement officers. As with other cases involving harassment by non-employees, however, the reasonableness of the employer's corrective action would depend on the totality of the circumstances. These would include the nature of the alleged harassment, the specific context in which it arose, and practical limitations on the employer's ability to respond to the harassment such as constitutional constraints on the city or on another public employer. Depending on the facts of a particular case, a city likely would not be liable under Title VII for citizen harassment of a law enforcement officer where the city had taken reasonable corrective action under the circumstances.
I hope this information is helpful. This has been an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.
Carol R. Miaskoff
Assistant Legal Counsel