By Brian London, J.D., Fisher Phillips, Associate
The vast majority of sexual harassment lawsuits involve the actions of another employee or supervisor. “But not always,” as the U.S. Fifth Circuit Court of Appeals recently noted in a case that is drawing attention from healthcare employers.
- The Gardner Case
In Gardner v. CLC of Pascagoula, L.L.C., the plaintiff, Kymberli Gardner, worked as a Certified Nursing Assistant at an assisted living facility in Mississippi operated by CLC.[1] Gardner was, by all accounts, an experienced caregiver. She had previously worked at several other assisted living facilities, including two that specialized in caring for mentally disabled patients, in addition to having specific training on techniques for handling aggressive patients.
None of that training or experience prepared Gardner for what she encountered from one of the patients at the CLC facility, however. The patient in question, “J.S.”, was an elderly resident who suffered from a range of different conditions, including dementia, Parkinson’s disease, traumatic brain injury, and personality disorder with aggressive behavior. Gardner began caring for J.S. shortly after she was hired by CLC. J.S. had been living at CLC’s facility for approximately six years at that point and had developed a reputation for being an exceptionally difficult patient. He had a documented history of violent behavior towards both his fellow residents and CLC’s staff. His behavior was particularly aggressive towards female caregivers, who frequently reported being groped by and/or subjected to offensive sexual comments and requests from J.S.
Gardner reportedly endured this type of behavior almost every day during the time she worked for CLC. Although Garner and other female caregivers complained to CLC’s management on several occasions, their complaints were consistently written off or ignored, if not outright mocked. For example, in response to one such complaint, the facility’s administrator told Gardner to “put her big girl panties on and go back to work,” while Gardner’s direct supervisor laughed.
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The situation eventually reached a tipping point as a result of an incident in which J.S. tried to grab one of Gardner’s breasts before punching her several times. Gardner sustained several injuries as a result of the attack and remained out of work for almost three months. Upon her return, Gardner asked to be reassigned to another patient as a result of the harassment. The facility administrator rejected the request and ordered Gardner to continue overseeing J.S.’s care. When Gardner refused, she was discharged for insubordination. J.S., for his part, was required to undergo additional psychiatric testing and was later transferred to an all-male “lockdown” unit at a different facility.
Gardner filed suit against CLC, asserting claims under Title VII for sexual harassment and retaliation. The district court dismissed Gardner’s claims on summary judgment, finding that J.S.’ behavior was not beyond what a nurse should reasonably expect to encounter when caring for nursing home patients with dementia. Gardner appealed.
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The Fifth Circuit reversed, finding that CLC could potentially be liable on both of Gardner’s claims. The court noted that the fundamental question underlying Gardner’s case was how Title VII “should account for a situation when individuals cannot medically conform their conduct to societal norms.”[2] In addressing that inquiry, the Fifth Circuit examined several comparable third-party harassment cases involving mentally impaired patients, from which it gleaned two important legal principles relevant to Gardner’s claims.
First, given the prevalence of inappropriate comments and physical touching when dealing with patients with significant cognitive deficits, the court found that it would be unreasonable for caregivers to expect they would never encounter such behavior from a patient. Caregivers, in other words, must tolerate at least some degree of verbal insult and unwanted physical contact due to the very nature of their jobs. Second, once an employer is on notice that a patient’s behavior has progressed from “occasional” offensive comments or touching to more persistent or threatening, Title VII imposes a duty for the employer to take reasonable steps to protect the employee from the harassing conduct.
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Applying those principles to the case at hand, the Fifth Circuit found that the daily instances of unwanted grabbing and inappropriate sexual comments that Gardner had endured were both more serious and more pervasive than the types of behavior typically deemed insufficient to create a hostile work environment. It was also undisputed that CLC was aware of J.S.’s behavior based on the various complaints it had received from Gardner and other female caregivers over the years. Nevertheless, CLC had not made any attempt to remedy the situation or to protect female caregivers like Gardner from J.S.’s behavior. The Fifth Circuit therefore held that CLC could be liable for any harm that Gardner suffered as a result of the harassment.
The Fifth Circuit was not persuaded by CLC’s arguments that it would have been impossible to control J.S.’s behavior due to his various medical conditions. In other cases, the court noted, “nursing homes have successfully avoided liability by taking steps such as assigning a security escort, reassigning the victimized employee, and offering to remove the patient from the facility.”[3]
III. What Should Healthcare Providers Do?
The Gardner case is a great reminder that patients, vendors, and various other non-employee actors are capable of creating an actionable hostile work environment. The Fifth Circuit’s ruling also underscores that healthcare providers cannot ignore their duty to prevent and correct known incidents of harassment simply because the harasser is a patient—even one whose medical conditions are likely to result in inappropriate or anti-social behavior from time to time.
Key Takeaways:
To protect themselves from liability for patient harassment, healthcare employers should review their discrimination and harassment policies to ensure they prohibit harassment by patients, vendors, or any other non-employee present in the workplace. Employers should also provide mandatory training on these policies for all management-level employees so they will be equipped to respond appropriately to any incidents of patient-on-employee harassment that may occur. Finally, employers should be proactive in addressing problematic patient behavior before it develops into a full-blown hostile work environment.
References
See Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320 (5th Cir. 2019), as revised (Feb. 7, 2019), available at http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV1.pdf.
[2] Opinion at p. 10.
[3] Opinion at pp. 12-13.