The U.S. Court of Appeals for the Fifth Circuit found that an employer could be liable to a certified nursing assistant for a hostile work environment created by a patient who had engaged in years of sexual comments, groping, and assault.

In the reissued opinion of Gardner v. CLC of Pascagoula, a CNA was trained to deal with “physically combative and sexually aggressive patients.” The CNA complained of lewd comments and groping by a patient with cognitive issues. Patient was known to engage in such conduct with respect to female employees. Her supervisor told her to “put [her] big girl panties on and go back to work.” The CNA was also refused reassignment. She was terminated after an incident in which the patient punched her three times, and she reportedly swung back at him. She also refused to care for him, and reportedly made a racist statement about a white caregiver being able to calm him down. She then sued for a hostile work environment in violation of Title VII.

The Fifth Circuit acknowledged that the particular work environment must be taken into account. In two other cases, the Fifth Circuit had found no actionable sex or racial harassment based on comments by patients because “they were not “physically threatening or humiliating” and did not “pervade the work experience of a reasonable nursing home employee, especially considering their source.” But the Fifth Circuit further stated that there is no “bright-line rule that employees who care for disabled, elderly patients can never succeed on a Title VII claim.” In particular, Title VII comes into play where there has been a physical touching, as in this case.