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Can an Employer be Responsible for Sexual Harassment by a Patient With Dementia?


The issue before the Fifth Circuit in a recent employment case was whether a Certified Nurse Assistant (CNA) can bring a claim for sexual harassment against her employer for the conduct of a mentally impaired patient with dementia. The decision turned on the severity of the conduct, even in the unique workplace situation, and the employer response to the CNA’s complaints.

Sexual Harassment by Patients in an Assisted Living Facility

One of the reasons cases like this are so difficult is the unique nature of the workplace. Although CNAs are trained to handle “physically combative and sexually aggressive patients” at nursing homes and other assisted living facilities, that does not negate the fact that years of pervasive sexual comments and physical assault can create a sexually hostile work environment. The case before the Fifth Circuit involved a patient suffering from dementia, traumatic brain injury, and Parkinson’s disease. This particular patient had a long history of violence and sexual behavior towards the nursing staff. He was known to grab the females’ “breast[s], butts, thighs,” and try to “grab [their] private areas.” The question became whether this was sufficient to bring a cause of action for sexual harassment in the workplace.

Sexual Harassment Comes to a Head

The plaintiff, in this case, had cared for this patient for a long time and when she complained about the severity of his conduct, she alleged her supervisor laughed and an administrator told her to put “big girl panties on and go back to work.” One day, the patient tried to grab her breast, made sexually offensive comments and then punched her repeatedly. On that occasion, a Caucasian nurse was more successful calming him and the CNA (who is African-American) refused to continue caring for him. She asked to be reassigned and was out for three (3) months on Worker’s Comp leave.

Termination for Insubordination

When the CNA returned from leave, she was not reassigned so she refused to care for that patient. She was then terminated for insubordination after allegedly making a racist statement and swinging over the patients head during another instance of sexual harassment. The patient was subsequently sent for a psychiatric evaluation after an altercation with another patient and ultimately moved to an all-male “lockdown” unit.

Fifth Circuit Reconsiders Trial Court’s Dismissal of the Harassment Claims

The CNA’s case was dismissed at summary judgment by the trial court because the court reasoned the patient’s harassment was not, by law, beyond what a person in her position would expect of patients in a nursing facility. However, the Fifth Circuit reversed this decision because there were additional factors that needed to be considered. The appellate court recognized
that the case “involves the difficult line-drawing problem of what separates legally actionable harassment from conduct that one should reasonably expect when assisting people suffering from dementia.” However, in this case, even considering the mental state of the harasser, the alleged conduct was “far more severe than other residents’ and consisted of physical sexual assault and violent outbursts,” and her injuries were so severe that she was unable to work for three (3) months.

The Employer’s Response Was an Important Factor

The Fifth Circuit also held that a finding that the harassment was severe or pervasive was insufficient alone to hold the nursing home liable because the harasser was a patient as opposed to a supervisor. As such, it was necessary to show that “the employer knew or should have known of the hostile work environment but failed to take reasonable measures to try and stop it.” The appellate court then pointed out that the supervisors’ mockery of the employee when she complained demonstrated that the employer knew of the harassment and “failed to even attempt to remedy the situation.”

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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