Health Care Employers’ Title VII Obligations to Prevent & Remedy Harassment & Discrimination Extend to Patients

Written by: Jacqueline Voronov, Esq. and Jeffrey Daitz, Esq.

What You Already Know…

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. It generally applies to employers with 15 or more employees, including federal, state and local governments. Title VII also applies to private and public colleges and universities, employment agencies, and labor organizations.

 But Did You Also Know That…

Title VII also requires healthcare employers to protect their medical staff and employees from harassment and discrimination even if the actor is a patient, rather than a coworker or supervisor?  Yup, it sure does!

While claims of discrimination or harassment that create a hostile work environment under Title VII are most commonly based on employee-to-employee behavior, healthcare employers may be held liable for patient-to-employee conduct as well.  A recent decision from the U.S. Court of Appeals for the Fifth Circuit illustrates an employers’ obligations when the harasser is a patient. Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320 (5th Cir. 2019).

Kymberli Gardner, an African American Certified Nursing Assistant (CNA) employed at an assisted living facility, claimed her employer failed to address the alleged hostile work environment created by a patient’s persistent physical and verbal harassment.

Gardner alleged that patient “J.S.” had a long history of violent and sexual behavior toward other patients and staff and a reputation for groping female employees and being physically aggressive.  Gardner alleged J.S. was inappropriate daily, grabbing her and making repeated sexual comments and requests. She said his behavior was documented in his records and reported to supervisors on numerous occasions. Gardner claimed that in response to her complaints, her supervisors allegedly laughed and told her “to put big girl panties on and go back to work.”

On one occasion, as Gardner was helping J.S. out of bed, he allegedly tried to grope her. When Gardner resisted, J.S. allegedly punched her. She then went for help and returned with another employee.  The two employees sought additional assistance from a nurse, who was white. The three of them were able to subdue J.S. and get him into his wheelchair.  After this incident, Gardner allegedly said, “I’m not doing sh** else for this [patient] at all” and “I guess I’m not the right color.”  Thereafter, the facility terminated Gardner for insubordination for refusing to continue to care for J.S., violating the patient’s rights by using profane language in front of him, making a “racist type” statement, and attacking the patient by swinging her hands above his head.

 The Fifth Circuit noted that many years of unwelcome sexual grabbing or explicit comments could be deemed under Title VII severe or pervasive if the patient was not mentally impaired.   The district court had dismissed the case on summary judgment, reasoning that a hostile workplace did not exist.  It explained that it was “not clear to the Court that the harassing comments and attempts to grope and hit are beyond what a person in Gardner’s position should expect of patients in a nursing home.”  The Fifth Circuit, however, did not agree.  It deemed the allegations were, in fact, sufficient to allow the case to go to trial.  Moreover, the Fifth Circuit noted a jury could find that an objectively reasonable caregiver would not expect a patient’s behavior would result in not working for three months, while their complaints were unduly dismissed by leadership.

So What Did This Mean For Healthcare Employers?

I am glad you asked!  Healthcare employers should consider implementing these and other best practices:

• Confirm the company’s harassment and discrimination policy specifically applies to and addresses not only employee-to-employee or supervisor-to-employee conduct, but patient-to-employee conduct;
• Respond promptly and appropriately to reports from employees and conduct a thorough investigation, making sure to document every step of the way;
• Train employees on the company’s anti-harassment and discrimination policy and make certain that employees are aware of the avenues available to them for grievances and include examples of unacceptable patient-to-employee harassment and discrimination; and,
• Ensure employees who care for patients are trained regularly (at least annually) to properly respond to and address patients with diminished capacity who may exhibit inappropriate behaviors.

With a new year right around the corner, there is no better time than now to revisit your handbooks, review your written policies, and evaluating training programs.  Hall Booth Smith, P.C. attorneys are available to answer any questions you may have on this or other employment law issues.