Claims of sexual harassment typically involve the behavior of fellow employees.   But, an employer’s potential liability for sexual harassment also extends to conduct by a non-employee, such as a customer, client, or patient, that creates a hostile work environment.

The principle of employer liability for harassment by a non-employee third-party presents particular challenges to the long term care industry.   The problem occurs when the harasser is a resident or patient with dementia or other diminished mental capacity.   Physical violence or sexually inappropriate is sometimes associated with Alzheimer’s or other forms of dementia.   In many cases, courts have recognized behavior that might qualify as sexual harassment in other contexts does not create a hostile work environment for care facility employees directly caring for such patients, because the employee should reasonably expect it to occur.  The unique circumstances involved in caring for dementia patients essentially makes tolerating at least a certain level of bad behavior part of the job.

However, a recent case from the Fifth Circuit (covering Texas, Louisiana, and Mississippi) shows that long term care employers do not always get the benefit of the doubt when it comes to a dementia patient’s alleged sexual harassment of a care center employee.   The case is Gardner v. CLC of Pascagoula, LLC, (5th Cir. 2-7-2019).  The plaintiff in Gardner was a Certified Nursing Assistant (CNA) at an assisted living facility.   She was experienced in working with mentally disabled patients, and was trained in de-escalation and defense tactics for aggressive patients.  Gardner often worked with patients who wither “either physically combative or sexually aggressive.”

The harasser was an elderly resident who lived at the facility for eight years.   Gardner worked with him for three of those years.  The resident had a reputation for groping female employees and becoming physically aggressive when reprimanded.   He was diagnosed with dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson’s Disease.   He was reported to have a “long history” of violent and sexual behavior toward both patients and staff.

Gardner alleged she experienced on a daily basis the resident physically grabbing her and repeatedly making sexual comments and requests.   She documented the resident’s behavior in his chart and routinely complained to supervisors about it. The resident was at one time transferred to a different wing of the facility because of his behavior, but the employer refused the Gardner’s request to be reassigned so she would not have to care for him.  When she attempted to discuss her concerns about the resident’s behavior with her supervisor, there was evidence Gardner’s supervisor laughed and told her to “put [her] big girl panties on and go back to work.”

The facility terminated Gardner after an incident that occurred while she was helping the resident in question attend a therapy session.   As Gardner was trying to help the resident out of bed, he tried to grope her, then punched and pushed her.  Although Gardner disputed it, the facility claimed she swung her fist over the resident’s head and her arm brushed the top of his head in the process.  As she left the resident’s room Gardner uttered an expletive about refusing to do anything else for the resident.  Gardner sustained serious enough injuries in the incident that she went to the ER and ended up missing three months of work. Shortly after returning from leave, the facility fired her for insubordination (refusing to work with the resident), attacking the resident, and violating his rights by swearing in front of him.

The trial court dismissed Gardner’s hostile work environment claims.  The court reasoned that the resident’s “harassing comments and attempts to grope and hit are [not] beyond what a person in Gardner’s position should expect of patients in a nursing home.”  However, the Court of Appeals reversed the grant of summary judgment, concluding that “the evidence of persistent and often physical harassment…is enough to allow a jury to decide whether a reasonable caregiver on the receiving end…would have viewed it as sufficiently severe or pervasive, even considering the medical condition of the harasser.”  The facts significant to the court of appeals seemed to be the frequency of the resident’s conduct (daily), its severity (physical sexual assault and violent outbursts), and its impact on Gardner’s employment (she was on medical leave for three months because of the injuries she sustained in the altercation).  It probably didn’t help that a supervisor was dismissive of Gardner’s concerns.

While the facts in Gardner may show extreme and unusual patient behavior, it nonetheless establishes a troubling precedent for long term care facilities where dementia patients live.   Unlike an employee who can be abruptly terminated, residents in care facilities, particularly those receiving Medicaid benefits, have rights that prevent them from being immediately discharged.   Sometimes such residents have the right to hearing before an administrative law judge, who may or may not agree the patient can be evicted, or who may delay the eviction.  In the meantime, these residents must be cared for.  Depending upon the size of the facility and the number of care giving employees, simply reassigning an employee away from the difficult resident on a permanent basis could be quite difficult.    Long term care facilities will have to be more attentive than ever to balancing the rights of caregiving employees to be free from harassing conduct while also providing adequate care for difficult residents whose bad behavior is often the result of their medical condition.

For an industry that already faces a challenging regulatory and legal environment, the prospect of more sexual harassment jury trials arising out of the behavior of dementia patients is not a welcome development.

U.S. District Judge Linda Reade has become the scourge of the EEOC.   On August 1 Judge Reade entered an order sanctioning EEOC nearly $4.7 million for attorney’s fees and expenses CRST Van Expedited incurred to defend itself against a largely frivolous complaint alleging that as many as 270 female employees were subject to a pattern and practice of sexual harassment.

This is the second time Judge Reade has ordered sanctions in this case.     She sanctioned EEOC $4.5 million in 2010 after granting summary judgment to CRST on the pattern and practice claim, dismissing 154 of the individual claims because of lack of evidence or the EEOC’s failure to investigate, and dismissing 98 claims as a discovery sanction. 

 

The Eighth Circuit reversed the attorney fee award in 2012. The court of appeals found that Judge Reade should not have granted summary judgment with respect to claims of two of the individual plaintiffs. The court found there were genuine factual disputes on the two claims and therefore they were entitled to a trial.   Because two plaintiffs remained, the court concluded CRST was not a “prevailing party”, at least not yet.   The court left open the possibility CRST could pursue its fee claim after the final two claims disposed. 

 

The case was remanded back to Judge Reade to litigate the claims of the two remaining plaintiffs.   After remand, EEOC withdrew its claim on behalf of one of the remaining plaintiffs, and agreed to a $50,000 settlement for the other.   Notably, the settlement agreement did not preclude CRST from pursuing attorneys’ fees and costs.  

 

CRST claimed it was entitled to recover attorneys’ fees because, with the exception of a single settlement, it prevailed on all the other claims.   EEOC contended, on the other hand, that its recovery on behalf of one of the plaintiffs was enough to defeat CRST’s “prevailing party” status.  Judge Reade concluded a single settlement of $50,000 after claiming as many as 270 plaintiffs were sexual harassment victims, plus the unreasonable pursuit of multiple groundless claims, warranted a finding that CRST was a “prevailing party.”

 

Although it is likely EEOC will appeal this award, it is refreshing that a judge recognized and appropriately responded to the EEOC’s aggressive tactics and the failure to follow the law it is charged with enforcing.    Unfortunately, EEOC’s advantage in resources compared to many private litigants allows them to sometimes get away with these tactics.  Many defendants can’t afford to fight these battles and therefore settle even questionable cases simply to avoid going head to head with EEOC.  Hopefully this ruling will cause EEOC to be more circumspect about the claims it pursues, and perhaps may embolden employers to fight back when the agency overreaches.

Two recent cases out of the U.S. Court of Appeals for the Eighth Circuit (which includes Iowa, Nebraska, Minnesota, Missouri, Arkansas, and North and South Dakota) serve as important reminders that employers should be alert to potential claims of religious discrimination and religion based harassment occurring in their work places:

  • On July 31, the EEOC announced that AT&T, Inc. paid $1.3 million to satisfy a judgment entered in favor of two employees who were terminated after they took time off work to attend an annual conference of Jehovah’s Witnesses.    The judgment was entered after a jury trial in the U.S. District Court for the Eastern District of Arkansas, and was affirmed by the Eighth Circuit Court of Appeals. 
  • On July 29, a panel of Eighth Circuit reversed a trial judge’s ruling granting summary judgment to an employer in a religious harassment case.   The plaintiff in Winspear v. Community Development, Inc., alleged he was subject to a religiously based hostile work environment by his boss’ wife, who also worked for the company as a receptionist.   The Court of Appeals held the trial judge failed to consider whether a hostile work environment was created by the wife’s repeated comments that plaintiff’s deceased brother was suffering in Hell, and that plaintiff needed to find God to avoid the same fate.   

Claims based upon an employee’s religion are not as common as those based upon other protected characteristics, such as sex, race, age, or disability.  Nonetheless, EEOC statistics reflect an increasing number of charges alleging religious discrimination or harassment.  In response to this trend, the EEOC published the following documents to assist employers in evaluating their rights and obligations under Title VII’s prohibition against discrimination on the basis of religion:

Some important takeaways from these documents include:

  • Employers should have a well publicized and consistently applied anti-harassment policy that specifically includes harassment on the basis of religion or religious practice, including a mechanism for making complaints, allowing for investigations, and preventing retaliation;
  • Employers should permit non-disruptive and non-harassing religious expression among employees to the same extent other types of personal expression is allowed;
  • Supervisors should be permitted to engage in religious expression, but they should avoid expressing themselves in a manner that a subordinate could perceive as coercive, even if not intended that way;
  • Polices and practices concerning the reasonable accommodation of employee’s religious practices should be developed and communicated to employees.  Such practices might cover scheduling, breaks for prayer, dress, and grooming; 
  • When considering whether an employee’s requested accommodation causes undue hardship, or whether a particular religious expression is disruptive, employers should gauge the actual hardship or disruption that will result, and not speculate about what may occur.   Managers should be flexible in exploring alternatives that will permit the employee’s religious practice while also allowing the employer to operate its business.

Image: Joan of Arc (from Flickr)

 

There is an interesting debate occurring in the legal blogosphere concerning LinkedIn, a popular business social networking site.   It started with an article a couple of weeks ago in the National Law Journal, where management side lawyers were quoted giving warnings about the dangers of  using LinkedIn to provide recommendations to current or former employees.   The concern is that a terminated employee may use favorable recommendations on LinkedIn as evidence that the employer’s stated reason for termination–poor performance–is merely a pretext for discrimination, retaliation, or harassment.

Two posts appearing yesterday take an opposing view.   Daniel Schwartz (Connecticut Employment Law Blog) and Molly DiBianca (Delaware Employment Law Blog) downplay the danger to employers of LinkedIn recommendations.  Dan contends the warnings of management side lawyers are overblown, while Molly argues that news stories such as appeared in the National Law Journal are simply propaganda.

With all due respect to my colleagues in Connecticut and Delaware, in my judgment, employers should be concerned about their managers communicating about an employee on LinkedIn.  It’s easy to argue in the abstract that statements on social networking sites are no big deal, but as a practical matter, any communications concerning employee performance, regardless of the media, are potential evidence in a lawsuit.  The unfortunate reality is that many people, including managers or supervisors who probably should know better, tend to be careless when communicating through electronic media, whether that media is text messaging, e-mail, or social networking sites.   Employee lawsuits are a fact of life in today’s world, but many of them go away, either through a relatively inexpensive settlement or a dismissal via summary judgment.  What most employers really fear is the suit that is not settled, survives summary judgment, and must be tried to a jury.   A careless recommendation on LinkedIn is just the sort of evidence that can generate a genuine factual dispute in a case and make it more risky and expensive than it otherwise would have been.

This is an important discussion because social networking remains a relatively new phenomenon that the law has not yet caught up with.    We welcome more comments and debate on this issue.

Employers should take note of a recent EEOC publication entitled "Employer Best Practices for Workers with Caregiving Responsibilities", available on the EEOC website, or by clicking here.   

Although an employee’s status as a caregiver is not protected under any federal or Iowa law, the EEOC nonetheless takes the position that discrimination against such employees can constitute discrimination on the basis of characteristics that are legally protected, such as sex or disability.   EEOC "Best Practices" documents do not carry the force of law, but are intended to provide suggestions for practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.  Best practices are proactive measures that go beyond federal non-discrimination requirements.    As courts often defer to the EEOC’s interpretation of the discrimination laws, employers should familiarize themselves with some of the EEOC’s suggestions.

The EEOC recommends that employers develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.   The document states that an "effective" policy should include, among other things, the following:

  • Definitions of relevant terms, including “caregiver” and “caregiving responsibilities.
    • Provide an inclusive definition of “family” that extends beyond children and spouses and covers any individual for whom the applicant or employee has primary caretaking responsibilities.
  • Describe common stereotypes or biases about caregivers that may result in unlawful conduct, including:
    • assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment;
    • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees;
    • assuming that male workers do not, or should not, have significant caregiving responsibilities;
    • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;
    • assuming that female workers who are caregivers are less capable than other workers; and
    • assuming that pregnant workers are less reliable than other workers.
    •  
  • Provide examples of prohibited conduct related to workers’ caregiving responsibilities, such as:
    • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities;
    • making stereotypical comments about pregnant workers or female caregivers;
    • treating female workers without caregiving responsibilities more favorably than female caregivers;
    • steering women with caregiving responsibilities to less prestigious or lower-paid positions;
    • treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin-based stereotypes;
    • treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;
    • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities; and
    • providing reasonable accommodations for temporary medical conditions but not for pregnancy.

 Proactive employers would do well to review their policies to take into consideration potential discrimination claims by employees with caregiver responsibilities.