United States: Protecting Employees From Patient Harassment: It's No Laughing Matter

Last Updated: August 7 2018
Article by Jaklyn Wrigley

"Claims of sexual harassment typically involve the behavior of fellow employees. But not always." So begins a recent opinion from the 5th Circuit Court of Appeals that illustrates the dangers of failing to take an employee's complaints of harassment by a patient seriously. In its opinion, the court reminds employers of Title VII's mandate that they take reasonable steps to protect employees once they know that the employees are subject to abusive behavior. An employer's failure to do so could allow an employee's claim to proceed to trial.

The 5th Circuit's pronouncement in the case is not novel. In the midst of the #MeToo movement, it does serve as a timely reminder, however. It also underscores that healthcare employers—which chaperone an environment rife with challenges—are not above reproach. The duty to provide a safe workplace exists regardless of that workplace's inherent and expected hazards.

Gardner v. CLC of Pascagoula, LLC: A Brief Overview

CLC of Pascagoula, LLC is an assisted living facility that operates on the beautiful, family-friendly Mississippi Gulf Coast (a shameless plug by this article's author, who resides on said gulf coast—a real hidden gem among beach destinations). Kymberli Gardner worked as a Certified Nursing Assistant for CLC. Before that, she worked for other facilities and in-home care providers, two of which specialized in care for the mentally disabled. Ms. Gardner was no stranger to patients who were mentally ill, some of whom were physically combative or sexually aggressive. In fact, she was trained in defensive and de-escalation tactics so she could properly care for those patients in a way that did not jeopardize her safety.

Given Ms. Gardner's experience and training, it should be no surprise that CLC assigned her to care for "J.S."—an elderly resident who suffered from a variety of physical and mental illnesses, including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson's Disease. J.S. was hardly an easy patient. He had a history of exhibiting violent and sexual behavior toward other patients and CLC staff. Indeed, CLC knew that J.S. was more aggressive toward female caregivers, that he had sexually assaulted them by grabbing their private areas, and that he asked for explicit sexual acts on a regular basis.

J.S.'s persistently inappropriate behavior prompted numerous staff complaints during his tenure at CLC, with Ms. Gardner's among them. In response to one of Ms. Gardner's complaints, CLC management purportedly laughed and told Ms. Gardner to "put [her] big girl panties on and go back to work." For those who are not well-versed in Southern colloquialisms, this is the equivalent of management telling Ms. Gardner to "just deal with it." So, Ms. Gardner did.

One day, Ms. Gardner reached a breaking point. She was assisting J.S. out of bed when he began to try to grope her. Ms. Gardner pivoted, and J.S. punched her left breast. Ms. Gardner sought the assistance of another member of the staff, and the two tried to move J.S. into his wheelchair. J.S. then punched Ms. Gardner a second time. A third employee came to assist, and while the trio was ultimately successful in situating J.S. in his chair, J.S. was able to get a third punch in.

What happened next is in dispute, but witnesses said Ms. Gardner took a swing at J.S. but did not actually hit him. Ms. Gardner denies this allegation. She also allegedly stated in front of J.S. that she was "not doing sh*t-else for him at all" and that she guessed she was "not the right color" (presumably because Ms. Gardner is African-American, whereas the third employee to join the effort was Caucasian). Following the incident, Ms. Gardner advised members of CLC's management team that she would no longer provide care for J.S. and asked to be reassigned. Facility managers denied her request.  

Ms. Gardner then reported to the emergency room for treatment of the injuries she sustained from J.S.'s physical abuse, and she remained out of work for three months. Shortly after she returned, the facility terminated her employment. Her supervisor explained the decision was because of her insubordination in refusing to care for J.S., for violating J.S.'s resident rights by swearing in front of him and making a "racist-type statement," and for attacking J.S. by taking a swing at him. Nothing happened to J.S.—at least not until an altercation with a resident on the day of Ms. Gardner's termination, which resulted in his relocation to an all-male "lockdown" unit.

Ms. Gardner filed suit in federal court and asserted various claims under Title VII of the Civil Rights Act of 1964. The trial court dismissed her case and she appealed her hostile work environment and sexual harassment claims. On June 29, the 5th Circuit Court of Appeals (which hears federal appeals from Mississippi, Louisiana, and Texas) reversed the dismissal and resurrected her claims.

The lessons employers should learn from the court's opinion? Do not mock employee complaints of harassment, at least try to protect them from abusive behavior, and think twice before you base a termination decision on an employee's refusal to perform work that she believes subjects her to unlawful conduct.

Non-Employee Harassment In The Healthcare Space: It's Complicated

It is well-settled that Title VII does not prohibit all harassment, but does prohibit harassment because of sex (or other protected characteristics) that is sufficiently severe or pervasive to affect the terms and conditions of employment. There are subjective and objective components to this analysis. Thus, a plaintiff must subjectively perceive the harassment as severe or pervasive, and a plaintiff's subjective belief must be objectively reasonable. What this means in healthcare can be different from what this means in other industries.

It is the opinion of many that no workplace in America presents greater challenges than those in the healthcare setting. Abuse and harassment are common. From patients with diminished capacity to those under the influence of drugs, employment can be difficult, if not downright dangerous. But the law takes these things into account, and courts are required to judge the specific circumstances of each claim when evaluating whether the conduct at issue constitutes actionable harassment or conduct that an employee should reasonably expect to occur in the particular work environment.

Given the nuances of the law when applied to the healthcare workplace, courts have held that conduct by a patient who is medically incapable of conforming their conduct to societal norms might not necessarily create a hostile work environment, even if the same behavior by a coworker would. This leeway does not immunize healthcare employers that fail to take action when allegations of abuse or harassment come to their attention, however.

Practical Steps To Avoid Liability And Create A Safe Workplace

Savvy employers will take heed that simply doing nothing is the wrong approach. That said, there is no magic elixir to eliminating harassment in the workplace. Even the most ambitious and well-intentioned healthcare providers would fail in an endeavor to totally stamp it out. This is particularly true for providers who deliver care to patients with serious cognitive deficits. Fortunately, Title VII does not obligate you to eliminate harassment in the workplace. Instead, Title VII demands only that you take reasonable measures to try to abate it.

As a critical first step, you should maintain a policy that prohibits discrimination, harassment, and retaliation. Not only should this policy apply to conduct by employees, but also to non-parties such as patients, vendors, customers, and any other third-party that may interact with your employees. The policy should also include a detailed but user-friendly reporting mechanism, as well as an accompanying instruction that employees are expected to raise complaints.

Policies are ineffective if employees are unaware they exist. So your next step must be to make sure the policy is communicated to all employees in a regular and conspicuous way. You may accomplish this by requiring employees to acknowledge receipt and understanding of your handbook (or other document that houses the policy) and posting information about the policy in a breakroom or other employee area.

You may (read: should) also accomplish this step by providing training to both hourly employees and managers. Hourly employees should be trained on what type of behavior violates the policy, that they have an obligation to report that behavior, and how to make such a report. Members of management should be trained on how to identify harassment in the workplace, that patients (and other non-employees) may be the cause of the harassment, and how to address issues concerning harassment when they arise.

Now that the workforce is educated on your policy, you must be prepared to handle an employee's complaint. The foundation for any response is an immediate and thorough investigation. This means you must take all complaints seriously. Certainly, you should refrain from mocking the employee who raises the complaint. Not only does this shirk your Title VII responsibilities, but it also allows the toxic workplace culture that birthed (at least partially) the #MeToo movement to fester. This may breed additional harassment claims, which are regarded as particularly loathsome in the current climate.  

Finally, there should be some sort of accountability. What this means when a patient is involved is difficult to say. But just because the situation may be challenging does not mean you should do nothing. In the end, simply chalking things up to the fact that the bad actor "can't help it" does not license you to ignore the misdeeds.

The Takeaway: Don't Do Nothing

Instead of doing nothing, do something. These tips are a great start, but the work of a healthcare provider that is truly invested in creating a culture both satisfying to its employees and focused on top-notch patient care is never done.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Jaklyn Wrigley
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions