Patient Sexually Harassed CNA: Appeals Court Upholds Lawsuit.
Legal Eagle Eye Newsletter for the Nursing Profession
August 2018
The District Court’s summary judgment in favor of the nursing facility is reversed. The CNA is entitled to her day in court to prove her case to a jury.
Caregivers working with patients suffering from dementia or mental illness must expect their patients will act out in some ways that would be wholly inappropriate in normal social contexts. However, when that acting out progresses from sexually inappropriate verbal comments and occasional touching to violent assault with the potential for repetition, the employer must take action. If the employer does not take action to protect a caretaker from violent acting out, the employer can be held liable in a discrimination lawsuit for allowing a sexually hostile work environment to exist.
Protection for the employee could include providing a security escort when in the perpetrator’s presence, reassigning the victimized employee or removing the patient altogether from the facility. This employer had no explanation why no protection was offered. UNITED STATES COURT OF APPEALS FIFTH CIRCUIT June 29, 2018
The US Court of Appeals for the Fifth Circuit has reversed the ruling of the US District Court for the Southern District of Mississippi we reported in March 2017. See Patient Harassed CNA: Court Sees No Grounds For Lawsuit. Legal Eagle Eye Newsletter for the Nursing Profession (25)3, Mar. ‘17 p. 2.
The rationale for the District Court’s 2017 ruling was that caregivers who care for dementia patients must expect their patients to act out in ways that are totally unacceptable under normal circumstances in civilized society. That would include some sexual actingout, the Court said.
The Court of Appeals recognized the unique nature of the workplace of individuals who care for the mentally ill. Behaviors of patients with reduced cognitive ability can include inappropriate comments and some physical contact. A caregiver for such patients must expect inappropriate but basically harmless behaviors as a part of the job.
However, when physical contact progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm a facility must take steps to protect the employee. This resident’s conduct was much worse than other residents. He had violent outbursts toward his caregiver that included actual physical sexual assault. When a physical assault took place his behavior went beyond offensive remarks and harmless touching. Even while working with a dementia patient a caregiver would not be expected to tolerate a patient at one point injuring her so badly she could not work for three months. The extent of the victim’s distress well could have been magnified when her complaints were met with laughter and dismissal by the facility’s administration.
The Court of Appeals did not rule definitively that the facility is liable. The Court of Appeals only threw out the District Court’s summary judgment in favor of the facility and ruled the CNA will get her day in court for a jury to decide her case. Gardner v. Nursing Home, __ F. 3d __, 2018 WL 3212309 (5th Cir., June 29, 2018).
More references from nursinglaw.com
http://www.nursinglaw.com/sexual-harassment-aide.htm
http://www.nursinglaw.com/sexharass.htm
http://www.nursinglaw.com/sexharass1.htm
http://www.nursinglaw.com/sexharass9.htm