Patient's Alleged Harassment of Nurse Results in Claim Against Employer

​An employee's hostile work environment sexual-harassment claim against her former employer based on the alleged conduct of a patient under her care at an assisted living facility could proceed to trial, the 5th U.S. Circuit Court of Appeals ruled.

According to the allegations in the lawsuit, the plaintiff worked as a certified nursing assistant for CLC of Pascagoula LLC in Mississippi from 2012 until she was terminated in 2015. As an experienced nursing assistant, she regularly worked throughout her career with challenging patients, including those who were either physically or sexually aggressive.

While working at a CLC facility, the plaintiff regularly provided care to "J.S.," an elderly patient who suffered from dementia, among other conditions. Allegedly, J.S. had a long history of violent and sexual behavior toward patients and staff, including touching, groping and making lewd comments. As one of J.S.'s care providers, the plaintiff asserted that she was subjected to these types of comments every day and would note his behavior in his chart and complain to her supervisors about it. The plaintiff further alleged that J.S.'s behavior was well-known throughout the facility and that management summarily dismissed her complaints regarding J.S.'s behavior.

One day, while attempting to assist J.S. in preparing to attend a therapy session, the plaintiff alleged that he attempted to grope her and touch her breast. When she moved away, he allegedly hit her in the breast and then punched her two additional times while she was attempting to help get him out of bed. One witness claimed that the plaintiff responded by swinging her fist over J.S., brushing the top of his head. Another witness, however, claimed that the plaintiff merely made a motion with her hand, as if she was going to hit J.S., but did not do so.

Following the incident, the plaintiff went to the emergency room for her injuries and remained out of work for the next three months. Prior to her departure, she asked CLC to be reassigned from J.S., but her request was denied. Upon the plaintiff's return to work, CLC fired her. The company asserted that she was insubordinate for refusing to care for J.S., violated J.S.'s resident rights based on certain comments made during the incident and physically attacked J.S.

Following her termination, the plaintiff sued CLC, seeking to hold it liable for J.S.'s alleged harassing conduct. CLC filed a motion for summary judgment. In finding that a hostile work environment did not exist, the district court said it was "not clear … that the harassing comments and attempts to grope and hit [were] beyond what a person in [the plaintiff's] position should expect of patients in a nursing home." The plaintiff appealed.

[SHRM members-only HR Q&A: What are the different types of sexual harassment?]

In reversing the lower court's dismissal of the plaintiff's suit, the 5th Circuit explained that a hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. The court further explained that not only must a plaintiff subjectively perceive that the harassment is severe or pervasive, but that such belief must be objectively reasonable based on the unique nature of the particular workplace.

While the court acknowledged prior precedent rejecting hostile work environment claims by health care workers involving primarily verbal interactions with difficult patients, it distinguished those cases from the circumstances involving the plaintiff's experiences with J.S. Specifically, the court reasoned that "the evidence of persistent and often physical harassment by J.S. is 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 reversed and sent the plaintiff's harassment claim back to the district court for further proceedings.

Gardner v. CLC of Pascagoula LLC, 5th Cir., No. 17-60072 (Feb. 6, 2019).

Professional Pointer: Some employers are surprised to learn that, under certain circumstances, they can be held liable for the harassing conduct of customers, clients and even third-party vendors. Well-drafted policies and procedures are a critical part of preventing harassing, discriminatory and inappropriate conduct in the workplace—regardless of the source of any such conduct.

Jonathan E. O'Connell, SHRM-SCP, is a labor and employment attorney practicing with the federal government in Washington, D.C.

[Visit SHRM's resource page on workplace harassment.]