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.