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eLABORate: Fifth Circuit Finds Employer Liable for Harassment by Nonemployee with Diminished Capacity

August 27, 2018

Title VII of the Civil Rights Act of 1964 (“ VII”) prohibits unlawful harassment in the workplace that is perpetrated by coworkers and supervisors. Such harassment, whether based on sex (including pregnancy), race, color, religion, national origin, age, disability or genetic information can expose employers to potentially expensive litigation and liability. However, it is important to remember that employers also can be liable for harassment from nonemployees. For example, a restaurant may be liable if it fails to address a customer’s sexual harassment of a waiter or waitress.

In a healthcare context, courts generally will not hold employers liable for the inappropriate conduct of patients or clients with diminished capacity. However, a recent ruling by the U.S. Court of Appeals for the Fifth Circuit shows there is a limit to the protection afforded to employers in such instances.

In Gardner v. CLC of Pascagoula, the Fifth Circuit addressed the issue of when diminished capacity does not excuse an employer’s obligation to respond to sexual harassment. In Gardner, a nurse at an assisted living facility brought an action against her employer, alleging the employer failed to prevent a resident’s repeated harassment, resulting in a hostile work environment in violation of Title VII.

Plaintiff, Kimberly Gardner worked as a Certified Nursing Assistant at an assisted living facility operated by CLC of Pascagoula. Gardner was trained in defensive and de-escalation tactics for aggressive patients. During her years of experience as a caregiver, she often worked with patients who were either physically combative or sexually aggressive.

An elderly patient at the CLC facility, referred to as J.S., had a reputation for groping female employees and becoming physically aggressive when reprimanded. The patient was diagnosed with a variety of physical and mental illnesses, including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease. J.S. had a long history of violent and sexual behavior.

Gardner reported J.S. would grab her and make sexual comments and requests on a daily basis, and she and other employees complained to supervisors about such conduct. The facility’s supervisors declined to reassign the patient or take any corrective action. The situation ultimately escalated to a physical assault of a sexual nature by the patient, during which Gardner was repeatedly punched by J.S. Gardner reported she raised her fist toward J.S. to motion him off, while CLC alleged she swung her fist at the patient, but missed striking him. CLC continued to refuse Gardner’s request to be reassigned and ultimately terminated her for having threatened J.S. with her fist, and for insubordination for refusing to continue to care for the patient.

Ruling in Gardner’s favor, the Fifth Circuit recognized that the multiple years of unwanted sexual grabbing and explicit comments Gardner endured could be deemed severe and pervasive, as required for liability under Title VII. It noted that if J.S. was not affected by a cognitive disability, there would be no question that his conduct rose to the level of unlawful harassment.

The Court noted that in other cases involving patients with diminished capacity it had declined to view verbal harassment, which included the patient repeatedly propositioning the employee for sex and calling her disparaging names, as sufficiently severe or pervasive. The Fifth Circuit similarly declined to say that a nursing home patient’s repeated racial slurs directed at a nursing assistant constituted severe or pervasive harassment. The Court reasoned that inappropriate comments and incidental contact are sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen.

J.S.’s conduct, however, rose above the level of nonphysical harassment. The Court found the facility should have taken steps to try to protect an employee once physical contact progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of physical harm. The Court also concluded that CLC failed to even attempt to remedy the situation upon learning of Gardner’s repeated abuse.

In light of the Fifth Circuit’s decision, employers should review their employee handbooks and guidelines to make sure that any anti-harassment provisions include language related to nonemployees. Employers who learn that an employee is being harassed by a client or customer should take prompt corrective action in the same manner in place when the harassment is by a coworker.