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What Did You Expect?
People who know me personally find me to be even-tempered, unflappable, never prone to anger, and surprisingly lacking in the opinionated, argumentative, or stubborn tendencies some lawyers have. So, it will come as a surprise to them that statements made in a recent court opinion have my blood boiling and that I have temporarily lost my golden personality. (I lie, of course, that is not at all how people who know me well find me.)
I am outraged for Kymberli Gardner. A CNA at a for-profit nursing home, Ms. Gardner was subject to a hostile work environment created by an elderly white male who sexually and racially harassed her, and by her employer who refused to protect her from such abuse. She and other black female employees complained that they were subjected to verbal, racial, sexual and physical abuse by this man. They were told that it was their job to take care of him. Rather than responding with concern for the safety and welfare of their employees, the women were told to “just put their big girl panties on and go back to work.”
Gardner was dressing the patient one morning when he attempted to grope her breast while making sexually explicit comments. When she moved away from him, he punched her in the chest. She left and returned with assistance, only to be punched again, and then a third time. She asked to change her assignment so she would not be punched again, but her request was denied. She was sent home and was out on worker’s compensation for 4 months, then terminated from her employment. Her refusal to continue caring for a man who physically battered her was considered insubordination.
The patient repeatedly engaged in verbal, racial, sexual, and physical acts of abuse. This, per the court, was not “beyond what a person in Gardner’s position should expect of patients in a nursing home such that [the nursing home] would be liable for creating a hostile work environment.” Gardner would have to show “unusually egregious working conditions to establish that a reasonable person would find the work environment hostile or abusive.” Well, I am generally a reasonable person and I would find being subject to racial epithets, sexual assault, and physical abuse “unusually egregious working conditions.”
The court reasoned that, “Gardner agreed to work with elderly, mentally diseased patients such as J.S., who could be expected to act out in normally unacceptable ways.” So, if you agree to work with a certain population that means you agree to be battered. Apparently, it is within your job description to be a punching bag. CNAs should understand that they have signed up to be abused and endangered. Perhaps judges should understand that they too have agreed to work with certain populations – maybe being struck is just part of their job too. Oh wait – striking a judge would be a serious federal crime. But if you are just a poor black female worker – too bad. It is your job to be the target of a racist, violent man. And the employer has zero responsibility to protect you.
Read the case. Gardner v. CLC of Pascagoula, LLC, No. 1:2015cv00423 - Document 52 (S.D. Miss. 2017)
Share my outrage. I will return with my golden personality next month.
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