Most employers know that they have to protect their employees against a hostile working environment. That includes protecting them from harassment by customers as well as co-workers. But what if the customers are convicted felons who are in custody?

That issue arose last month in a case by a former employee of a halfway house. In Turman v. Turning Point, Joyce Turman was a resident monitor at a privately run halfway house that transitioned felons from prison into the workforce and society in general. Apparently, she was pretty strict and wrote up the residents for far more disciplinary violations than her peers. The residents expressed their disagreement by, among other things, making sexual gestures and calling her sexually inappropriate names.  [Showing its unfamiliarity with urban slang, the opinion notes that one of the names the plaintiff was called was a "hoe."]

From my perspective, what makes the case interesting is the issue whether inappropriate behavior by convicted felons who are in custody is an inherent part of the job. The fact that these individuals are in custody in the first place indicates that controlling their behavior is a challenge. Perhaps the court would have been receptive to that argument in other contexts. But here there was no evidence that the employer attempted to take remedial actions. 

Also in the employee’s favor here was a precedent from a four-year-old Ninth Circuit decision involving a much rougher working environment than this one. If halfway houses are at one end of the prison custody spectrum, the other end in California is the Secure Housing Unit at Pelican Bay State Prison. In Freitag v. Ayers, the California Department of Corrections argued that, as a matter of law, it could not be held responsible for preventing harassing conduct by inmates. The Ninth Circuit rejected that argument. So unless your employees have to interact with individuals who behave worse than Pelican Bay inmates, don’t plan on arguing that you can’t be expected to protect your employees from bad behavior by your customers.