Dive Brief:
- A nursing home employee harassed by a patient can take her claims to a jury, the 5th U.S. Circuit Court of Appeals has held (Gardner v. CLC of Pascagoula, L.L.C. dba Plaza Community Living Center, No. 17-60072 (5th Cir., June 29, 2018)).
- Kymberli Gardner filed suit against her employer, alleging that it failed to take action when she was sexually harassed and physically assaulted by an elderly patient with dementia. She and others complained regularly and she asked to be reassigned; Gardner was not only denied the transfer, she alleged, but also laughed at and told to "put [her] big girl panties on and go back to work." Ultimately, she was fired and the patient was moved to an all-male "lockdown" facility. A district court granted summary judgment for the employer, but the 5th Circuit reversed.
- Inappropriate comments and incidental contact are common in certain fields, the appeals court said. But employers must take steps to try to protect an employee once there is persistent sexual harassment or violence with the risk of significant physical harm, it said; "A jury could find such a situation here." Most telling of the employer's ability to remedy the situation is that it eventually removed the patient after he assaulted another patient, the court said; "No reason is given for why that option was not considered when female employees complained of pervasive harassment or in response to the severe assault of an employee."
Dive Insight:
An employer can be held liable for third-party harassment when it knew or should have known about the problem and failed to take prompt and appropriate corrective action. This includes harassment from customers, vendors and even patients.
In this case, the court noted that other nursing homes had successfully avoided liability by taking steps such as assigning a security escort, reassigning the victimized employee and offering to remove the patient from the facility.
There are also several steps HR can take to minimize the impact of such issues, experts say. In addition to clear harassment reporting procedures, HR professionals need to be approachable, Jonathan Segal, a partner at Duane Morris, told attendees at a recent conference. This ensures individuals have somewhere to bring concerns. It's also important to have your response to such concerns prepared, Segal said, suggesting that both HR and front-line managers be ready to say, for example, "Thank you for raising your concerns with me. I want you to know we take them seriously." Finally, HR also must ensure that non-retaliation is a reality, he said; otherwise, the complaint procedure won’t be used.