Court Finds Demented Patient's Harassment of Nurse Constitutes Third-Party Workplace Harassment

Administrators from hospitals and long term care facilities need to take note of the recent Fifth Circuit Opinion in Gardner v. CLC of Pascagoula involving third-party workplace harassment (by a patient) against a nurse. In this case, the Fifth Circuit addresses the “difficult line-drawing problem of what separates legally actionable harassment from conduct that one should reasonably expect when assisting people suffering from dementia”.  This decision will have profound impact for nurses who have long been forced to tolerate abusive behavior from patients.

The court recognizes that inappropriate comments and incidental contact from patients with reduced cognitive ability is frequent and unavoidable. But, there must be a distinction made when the patient’s behavior escalates from “occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm”.

In such a scenario, the facility must take steps to protect the employee. In Garner’s case, her supervisors mocked her rather than taking appropriate action. Her supervisor actually told her to “pull up her big girl panties”.  Appropriate actions would have included accommodating the aide’s request to be re-assigned, assigning a security escort and potentially removing the patient from the facility. Incidentally, the patient was later transferred to a higher security environment. Ultimately, the court found that the employer failed to take reasonable steps to make the workplace as safe as possible.

You can find the full opinion on the court's website: https://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf