Monday, July 2, 2018

Gardner v. CLC of Pascagoula: When does sexual harassment by a patient with dementia violate federal law?

The case of Gardner v. CLC of Pascagoula, LLC, No. 17-6007217 (5th Cir. June 29, 2018), is worth highlighting because it handles very well the sticky situation where the alleged harasser has limited mental capacity.

The court concluded that Kymberli Gardner, a certified nursing assistant at an assisted living facility, had presented sufficient evidence to show that she was subjected to unlawful sexual harassment by an elderly resident with dementia. As recognized by the court, "workplace law should account for a situation when individuals cannot medically conform their conduct to societal norms"; however, while a harasser's limited mental capacity would be relevant in determining whether a reasonable person would perceive conduct as hostile, there is no categorical bar to sexual harassment claims under such circumstances.

Thus, the court concluded:
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. In contrast, the 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.
Here, the alleged harasser's known conduct included physically assaulting a bedridden roommate; sexually assaulting female caregivers by grabbing theirs breasts, buttocks, and private areas; and making lewd sexual comments to female staff and asking them for sexual favors. Gardner, in particular, had reported that the patient would physically grab her and make repeated sexual comments and requests. The court noted that instead of trying to remedy the situation when Gardner complained to her supervisors, they mocked her.

The court observed that in some cases it might not be possible to control a patient's conduct and the nursing home will face the "difficult choice" of either evicting the patient or allowing the harassment to continue. In this case, however, it was not necessary to decide this difficult question because the defendant had not taken steps to remedy the harassment. Gardner had testified that remedial steps taken at other facilities where she had previously worked included requiring two or more caregivers, using medication to control a patient's behavior, or transferring a patient to a more appropriate facility. Particularly telling, in the court's view, was that the defendant eventually transferred the patient to an all-male facility, but only did so after he assaulted another patient, and failed to take such action after female employees complained about sexual harassment.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.