Employees in nursing homes and other assisted living facilities have difficult jobs. Many aren’t well-paid, many aren’t well-trained and many are forced to work long hours doing unpleasant work in unpleasant circumstances.
In the case of Kymberli Gardner, those difficulties were exacerbated by another unfortunate reality: being sexually harassed on the job by one of her patients.
Her case is garnering national attention after the Fifth Circuit ruled her lawsuit against her former employer could continue, overruling a previous decision throwing out the case.
The Facts of the Case
Gardner was working as a certified nursing assistant at the Plaza Community Living Center in Pascagoula, Mississippi, starting in 2012 and ending in 2015. Gardner was assigned a patient, referred to in court documents only as “JS,” who suffered from a range of ailments, including:
- A traumatic brain injury
- Dementia
- Parkinson’s Disease
- Personality disorder with aggressive behavior
According to Gardner and other nurses, JS repeatedly harassed and even assaulted them. JS’ behavior included a range of degrading and demeaning actions, including repeated groping and sexual comments.
The final straw came when JS punched her three times, including once on her breast. Gardner’s reaction to that is disputed, but after a three-month leave of absence, Gardner was fired, with her employer citing insubordination (she refused to provide any more assistance to JS), violating the patient’s rights and allegedly attacking JS.
The Court’s Decision
The US District Court for the Southern District of Mississippi threw out the case, ruling that what Gardner dealt with was not unreasonable for someone in her position.
The Fifth Circuit disagreed and overruled that decision. It’s important to understand that the Fifth Circuit did not directly rule on the merits of the case – it merely said that a jury could reasonably find that the facts of the case qualified as a hostile work environment under Title VII of the 1964 Civil Rights Act.
One of the important factors in the Fifth Circuit’s decision was the reaction of Gardner’s supervisors to JS’ behavior and Gardner’s complaints. Gardner alleged that her supervisors laughed at her complaints and at one point told her to “put your big girl panties on and go back to work.”
In addition, JS had a long history of misbehavior, at one point assaulting a previous roommate in a dispute over the television.
After the incident in which JS repeatedly punched her, Gardner requested reassignment. That request was denied.
The Bigger Picture
There’s no denying that cases like these present a range of complications. Patients like JS are undoubtedly in need of quality care, and many of these patients are not in full control of their behavior. In its opinion, the Fifth Circuit acknowledged that caregivers in these situations could expect some “inappropriate comments and incidental contact.”
However, Gardner’s experience obviously went beyond that. In addition to JS’ behavior, the reaction of Gardner’s superiors (the nursing home did not deny they knew about JS’ harassment) and their refusal to take steps to address Gardner’s complaints were additional points in Gardner’s favor, according to the Fifth Circuit.
Healthcare facilities, in other words, do have certain obligations when it comes to protecting employees from patient harassment. It’s not enough to merely point out that the behavior comes from a patient and not a supervisor or another employee – while facilities like Plaza Community Living Center are not expected to guarantee that elderly patients with severe mental deficiencies will not misbehave with staff, they are responsible for taking steps to address their staff’s concerns.
As with many legal issues, the power differentials at play in these cases must be taken into consideration. Many nurses and caregivers are intensely vulnerable to harassment and exploitation – remember, many of these facilities are run by massive corporations, and these companies have resources that individual employees do not.
With the #MeToo movement bringing greater attention to sexual harassment and exploitation in a staggering range of fields, it’s worth taking a minute to acknowledge what nurses and other caregivers – often, though not always, female – have to deal with from many patients. Patient harassment doesn’t garner much news coverage, both because the victims are often people of color and out of the spotlight and because there’s no easy boss-subordinate narrative.
However, Gardner’s story is a useful reminder – not just of these facilities’ responsibilities, but also of what caregivers experience on a daily basis. The question, then, is how much protection Gardner and others like her can expect from the courts.