A recent lawsuit filed by the U.S. Equal Employment Opportunity
Commission ("EEOC") against a healthcare facility in
Virginia highlights a legal liability to which nursing homes and
other long-term care facilities are particularly vulnerable:
harassment of employees by residents. The lawsuit in question was
filed under Title VII of the Civil Rights Act and it alleged that a
female receptionist was subjected to a "sexually hostile work
environment" on the basis of harassment by a resident. The
lawsuit further alleged that the employee made numerous complaints
to her supervisor about the harassment yet the employer failed to
take proper corrective action.
Sexual harassment is a difficult issue in any employment setting,
but perhaps nowhere more so than in the resident care arena. A
number of different nursing home employees have regular, physical
contact with non-employees - primarily the residents for whom they
care (and the family members of those residents). Under Title VII,
nursing home employees are protected from harassment by residents
just as they are from co-workers and supervisors. Hospitals,
nursing homes, assisted living facilities and other patient-care
entities are responsible for providing a workplace free of sexual
harassment, regardless of whether the harassment is perpetrated by
a co-worker or by a paying resident.
Most nursing home employers have experienced episodes in which a resident acts out in an inappropriate manner. Often, the inappropriate behavior is due to the resident having a deteriorated mental condition such as dementia or Alzheimer's. As a result of this condition, residents may not understand that their actions are inappropriate. However, this mental condition does not act to shield nursing home employers from liability.
While it is critical for an employer to respond meaningfully to
a complaint, it is just as important that the response does nothing
to permit an employee to argue that he or she was retaliated
against for making the complaint. Retaliation claims have increased
within all industries in recent years and the long-term care
industry is no exception. An employer should not take any action
that is "materially adverse" to the employee -such as
transferring the employee to a position that has more onerous job
duties.
The most effective way to minimize the risk of harassment in your
long term care facility is to conduct regular training on your
policies or to implement policies now if they do not exist.
Originally published in the January 2013 issue of Provider Magazine and also on December 11, 2012 in Long-Term Care Management.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
