Aguiar v. Bartlesville Care Center, Tenth Circuit, No. 10-5002, January 28, 2011

Decision: Employers have an obligation to maintain a harassment-free work environment, which includes harassment from non-employees.

Diana Aguiar worked in a residential health care facility. She was repeatedly harassed by one of the residents, who would grope and verbally harass her. The facility asked the resident to stop the harassment, and required that two staff members be present to care for him. Still, the harassment continued, and was witnessed by coworkers.

On one occasion, the resident was angry with Aguiar and physically accosted her in the hallway. During the exchange, she called him a name. The facility terminated her for verbally abusing a patient. She sued for sexual harassment based on a hostile work environment, and for retaliation.

The lower court dismissed both her claims. In an unusual twist, (it is common for employees to lose a harassment claim but win a retaliation claim) the appellate court let stand the dismissal of her retaliation claim, but reversed on her sexual harassment claim. The court found that there was a question as to whether the employer had actual or constructive knowledge of the harassment when it terminated her. Her claim was allowed to go forward.

The Tenth Circuit includes the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.