He was probably an A-hole even before he got sick.

Kymberli Gardner worked at the Plaza Community Living Centre from 2012-2015.  From 2006-2014 a certain elderly man was a resident of the home.  His medical conditions included dementia, traumatic brain injury, Parkinson’s disease and personality disorder with aggressive behaviour. He had a history of showing violence (including sexual violence) to patients and staff.

Gardner was repeatedly the subject of the man’s attentions. Her employer made only minimal and ineffective steps to manage him. She reached breaking point in a final incident of assault on her and two other nurses.  She refused to provide further care to him.  She sought medical care for her injuries and lodged a workers compensation claim. On returning to work her employment was terminated. As a result of a subsequent incident the patient was sent to an all-male unit elsewhere.

Gardner sued, alleging a hostile work environment and retaliation. The US District Court for Southern Mississippi dismissed her claim: Gardner v CLC of Pascagoula LLC (US Dist. Ct, S.D. Miss., Guirola CDJ, 6 February 2017, unreported).  She appealed.

The 5th Circuit Court of Appeals accepted that Gardner’s experience could constitute severe and pervasive harassment. The employer was not permitted to wash its hands of the resident’s conduct, notwithstanding that he was medically unable to act appropriately.

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 ooccasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.

Liability based on the behaviour of someone not a supervisor depended on whether the employer knew or should have known of the hostile environment and took reasonable measures to try to abate it.  The court noted that other care homes had avoided liability by actions like –

• providing a security escort
• reassigning the employee
• offering to remove the patient from the home.

The District Court judgment was reversed and the matter remanded for further proceedings.

Gardner v CLC of Pascagoula LLC (US Fifth Circuit Court of Appeals, 29 June 2018)