Courts recognize the complication that exists when determining what constitutes actionable harassment where a healthcare employee is a caretaker for a patient with diminished capacity. The Fifth Circuit Court of Appeals recently reviewed this issue in a Title VII case that highlights the risks posed to employers in the healthcare and social assistance industries by patient harassment and violence: Gardner v. CLC of Pascagoula, LLC, No. 17-60072 (February 6, 2019). In Gardner, the Fifth Circuit explained the risks to healthcare employers when it reversed summary judgment on a nurse assistant’s claim for hostile work environment and retaliation, holding that a genuine dispute of material fact existed as to whether an assisted living facility took reasonable precautions to prevent sexual harassment and physical violence by a resident.
Gardner was a Certified Nursing Assistant employed at the Plaza Community Living Center, an assisted living facility, and “often worked with patients who were either physically combative or sexually aggressive.” Gardner had been assigned to work with a patient who had been diagnosed with multiple “physical and mental illnesses,” and had a reputation for groping female employees, as well as a history of violent and sexual behavior toward both patients and staff at the facility. Gardner alleged that she put up with propositioning and sexual assault by the patient on a regular basis, but that when she complained to the administrator at the facility, she was told to “put [her] big girl panties on and go back to work.”
The inappropriate conduct reached a climax in a physical confrontation, during which the patient allegedly repeatedly hit Gardner, and Gardner reportedly swung back, cursed in front of the patient, and remarked that she was “not the right color” to help him (Gardner is African American, the patient is white). Gardner subsequently took a three-month leave of absence on workers’ compensation as a result of the injuries she received during the interaction. After Gardner returned to work from medical leave, the facility fired her for (1) insubordination for refusing to work with the patient; (2) violating resident rights by swearing at the patient and making a racial comment; and (3) attacking the patient.
Gardner filed suit under Title VII, alleging claims for a hostile work environment based on sex and for retaliation. Under one of Title VII’s sexual harassment provisions, “an employer may . . . be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” 29 C.F.R. § 1604.11(e). The district court granted summary judgment, holding that it was “not clear to the Court that the harassing comments and attempts to grope and hit are beyond what a person in Gardner’s position should expect of patients in a nursing home.”
Appeal to the Fifth Circuit
The Fifth Circuit stated that the unique nature of the workplace (an assisted living facility involving the care of patients with diminished capacity) was an important consideration and focused on the “complication” that “the source of the harassment is the resident of an assisted living facility who suffers from dementia.” The court noted that it must take “due account of the unique circumstances involved in caring for mentally diseased elderly patients.”
Even so, the Fifth Circuit reversed the district court’s decision, which had concluded that a hostile workplace did not exist, explaining that the multiple years of unwanted sexual grabbing and explicit comments Gardner endured could be “enough to allow a jury to decide whether a reasonable caregiver on the receiving end of the harassment would have viewed it as sufficiently severe or pervasive even considering the medical condition of the harasser.” The court held that even given the unique nature of the workplace, a “facility must take steps to try to protect an employee once there is physical contact that progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.”
The Fifth Circuit concluded that the employer knew of the harassment and did nothing to attempt to remedy it. The court noted the potential remedies offered by Gardner, including requiring two or more caregivers at a time, using medication to control behavior, or transferring a problematic patient to a more appropriate home. The court also noted that the employer eventually removed the patient and sent him to an all-male facility, but that it only did so after the patient assaulted another resident, not when female employees complained of pervasive harassment or violence.
The Fifth Circuit also reversed summary judgment on Gardner’s retaliation claim. The court raised the issue of whether Gardner avoiding the harasser by refusing to provide care might constitute protected activity under Title VII sufficient to give rise to a retaliation claim. However, because the issue was not briefed, the court remanded it back to the district court for further consideration.
Although courts may take into account the special considerations that go along with the operation of a healthcare facility, there can still be employment-based liability if a patient or other third party’s behavior goes beyond the expected norms. Thus, employers in the healthcare and social assistance industries should make an effort to remedy uncorrected issues of harassment or patient-on-employee violence.