Probably not Grandpa Simpson

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.

Abe Simpson.jpg
Image from here

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)

Trade & Labour Union v Local Gov’t Assoc’n (2014) H&FLR 2015-3

Trade & Labour Union v Local Government Association (2014) H&FLR 2015-3

European Court of Justice

18 December 2014

Coram: Bay Larsen P, Jürimäe, Malenovský, Safjan and Prechal JJ

Appearing for the Plaintiff: Jacob Sand (of Gorrissen Federspiel)
Appearing for the Defendant: Y. Frederiksen (instructors not known)
Appearing for the Danish Government: C. Thorning and M. Wolff (instructors not known)
Appearing for the European Commission: M. Clausen and D. Martin (instructors not known)

Catchwords: European Union – Denmark – employment law – dismissal – obesity – discrimination – disability.

Facts: Mr Karsten Kaltoft was employed from 1 November 1996 by the Municipality of Billund as a childminder, initially on a fixed term contract and subsequently on a permanent contract.  It is common ground that at all material times the plaintiff was obese within the definition promulgated by the World Health Organization.  In November 2010 the Municipality terminated Mr Kaltoft’s employment, asserting that this followed a reduction in the number of children requiring care.  Mr Kaltoft considered that his dismissal had been motivated by his obesity.  The plaintiff brought proceedings on his behalf against the defendant, which represented his employer.

The proceeding was based on Denmark’s Act Respecting Prohibition Against Discrimination on the Labour Market (No. 1349 of 2008), ¶2(1) and ¶7(1), which implements Articles 1 and 2 of European Council Directive 2000/78 prohibiting direct or indirect discrimination on grounds of “religion or belief, disability, age or sexual orientation”

The trial court stayed the proceedings and sought a preliminary ruling from the European Court of Justice as to whether (a) it was unlawful for a government employer to discriminate on the basis of obesity and (b) obesity can be deemed to be a disability and, if so, in what circumstances will that disability be protected from discrimination: Fag og Arbejde v Kommunernes Landsforening (Kolding District Court, 25 June 2013, unreported).

Held: referring the matter back to the trial court, that –

1. Neither Directive 2000/78 nor the Charter of Fundamental Rights of the European Union can be extended by analogy beyond the grounds of discrimination they identify.  Accordingly, European law does not include a general principle of non-discrimination in employment based on obesity.

Chacón Navas v Eurest Colectividades SA, EU:C:2006:456; Coleman v Law, C-303/06, EU:C:2008:415, followed
Åklagaren v Åkerberg Fransson, C-617/10, EU:C:2013:105, considered

2. ‘Disability’ in Directive 2000/78 refers to a limitation resulting from (inter alia) physical impairment which in combination with other barriers may hinder the worker’s participation in employment on an equal footing with other workers. Because obesity does not necessarily pose a limitation it is not in itself a disability (1).  However, should a worker’s obesity give rise to long-term limitations which may hinder their capacity to work on an equal footing with other workers, it will then constitute a disability pursuant to Directive 2000/78

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, Z v A Government department and Board of management of a community school, C-363/12, EU:C:2014:159; and Glatzel v Freistaat Bayern, C-356/12, EU:C:2014:350, considered.

3. It is not relevant to the scope of Directive 2000/78 whether or not a person has contributed to their own disability (2).

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, considered.

Judgment

The Court’s judgement is available here.

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(1) Cf McDuffy v Interstate Distributor Co. (Multnomah Co. Cir. Ct., 2005), Seattle Times, 7 November 2005.  In this case, a 550-pound truck driver claimed to have been wrongfully suspended from duty based on his weight.  He was awarded $109,000.00 after he successfully demonstrated to the court that, regardless of his weight, he was able to perform his duties with only minor limitations.

(2) The evidence indicates that Mr Kaltoft had been unable to sustain any significant weight loss: see ¶19. Conceivably the Court might have assessed this point differently if there were evidence that Mr Kaltoft’s weight was wholly self inflicted: Noting the discomfort which overweight children provoke in some people, it is possible that an argument that Mr Kaltoft was ‘modelling bad behaviours’ would have prompted the Court to formulate an exception on the basis that this would be in the best interests of the children (cf Sec’y of Dep’t of Health and Comm’ty Serv. v JWB and SMB 175 CLR 218 (Austl., 1992)).  Such a line of analysis would, however, present significant further legal problems as to what behaviours ought be modelled.  For example, should an obese carer be required to complete a marathon or train for an ironman competition?  This would raise intriguing questions in relation to autonomy and personal time: Cole v South Tweed Heads Rugby League Football Club Ltd, 217 CLR 469, 476-477 per Gleeson CJ (Austl.,2004); Young v Workers Compensation Appeals Board (2014) H&FLR 37.