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 Harassment By Resident

Employers will be held liable if they do not protect employees from sexual harassment by a resident.


​A recent lawsuit filed by the United States Equal Employment Opportunity Commission (EEOC) against a private health care facility in Virginia serves as a reminder to nursing homes and other long term care providers of the potential liability they face when they have a resident who displays harassing conduct toward others. 

harassmentOn Sept. 6, 2012, EEOC filed suit against the Virginia facility under Title VII of the Civil Rights Act, alleging that the employer failed to protect a female receptionist from sexual harassment by a resident, which created a “sexually hostile work environment” for her.

As with most harassment lawsuits, the employee alleged that she made numerous complaints to her supervisor about the harassment, yet the employer failed to take proper corrective action.

Harassment Problems Specific To Residents

Sexual harassment is a difficult issue in any employment setting, but perhaps nowhere is it more problematic than in the resident care arena. Nursing home employees, including nurses and therapists, are in 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 disease. 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.

Employers Must Act

Where sexual harassment has been alleged in a nursing home, a court will likely first look to whether the employer knew or should have known about the harassment and whether the employer did anything to correct the offending conduct. Of course, a nursing home is somewhat constrained in how it can respond to complaints of sexual harassment by residents.

For example, a nursing home cannot transfer a resident unless the transfer complies with the Bill of Rights for Residents of Long Term Care Facilities. However, this constraint does not entitle an employer to sit back and do nothing.

A case from Massachusetts in the late 1990s illustrates this point. A respiratory therapist sued her employer and alleged that the employer failed to remediate repeated sexual harassment against her by an elderly resident in her care.

The employee also alleged that her employer retaliated against her after she complained. In that case, the employer had advance knowledge that the patient had been accused of making inappropriate sexual comments to female staff members at the hospital during his hospitalization.

Upon his arrival to the employer’s facility, the employer developed a care plan designed to address his “misbehavior.” Despite these measures, the employee claimed that the patient harassed her and that her complaints went unanswered.

The employer essentially argued that it was limited by the federal regulations governing long term care facilities from taking any action and that those regulations shielded it from liability. The court rejected that argument, finding that the employer could not disclaim all responsibility toward its employees in the name of patient care.

A similar argument has been rejected more recently by courts in other jurisdictions.

For example, a federal court in Illinois in 2008 rejected an argument from a defendant nursing home that it could not be held liable for the harassing conduct by a nursing home resident because it did not employ the resident.

In that case, a dietary aide sued her employer after a resident in her care repeatedly harassed her. The court held that it did not matter whether the harasser was a co-worker or a resident; the employer could be held liable if it knew or should have known about the harassment and failed to prevent it.

Steps A Nursing Home Should Take

These cases demonstrate that an employer will not be let off the hook simply because the harassing individual was not an employee. While it may not be possible to completely prevent harassment in the nursing home context due to the mental conditions of residents, employers can take steps to address and minimize the risk.

First, the employer should maintain a policy and procedure that addresses sexual harassment by residents or other third parties. The policy should specifically address how employees can report the harassment when it occurs.

Maintaining a “reporting” policy is critical for another reason: It provides the employer with important legal defenses in situations involving alleged harassment by a supervisor.

Second, the employer should regularly train its employees on how to react when they are harassed by a resident.

Because the duties of a nursing home employee often require him or her to work in close, physical contact with residents, there is an increased potential for misunderstandings or unwelcome incidents.

If employees are trained to react properly and promptly, the unwelcome conduct may be stopped before it becomes “severe or pervasive”—the standard used by courts in analyzing sexual harassment claims.

Third, the employer must investigate and respond to complaints appropriately. While the response will depend on the circumstances of the complaint, there are several “best practices” that an employer should consider. For example, the employer could assign the resident to another employee’s care or discuss with the employee whether he or she wants to transfer to another part of the facility.

Other options include making staffing adjustments such that the employee never cares for the resident by himself or herself. The employer should also consider involving the resident’s family in an effort to stop the inappropriate behavior.
Ted Boehm is a labor and employment attorney with Fisher & Phillips in Atlanta. For questions about this or other labor and employment issues, please contact him at or (404) 231-1400.

Susan Gail Ratty
4:00 PM
August 11, 2015
Harassment by either party must be addressed immediately to prevent further harassment or law suit employers must educate all staff on sexual harassment upon being hired this will prevent most instances of harassment.
9:26 AM
July 13, 2015
This is an especially hard to deal with issue in residents with Alzheimer's or demntia. I have never reported or taken anything too seriously because all the times I've been groped or spoken to in a sexually suggestive way, the resident was really just confused and needed redirecting.
Kenneth Wade Wilson
9:17 PM
July 03, 2015
Too many female employees in facilities. Women have a powerful instinct to treat any male behavior as suspect or wrong. That females dominate the profession and the ombudsman system suggests a horrific conspiracy by some really dumb, vile public funding magnates.
Kenneth Wade Wilson
9:04 PM
July 03, 2015
One last comment and I'll shut up. I've been kicked out of stores for authentically liking the people there. Usually young girls and women. They detect my liking them and interpret it as sexual harrassment or sexual intent. It's just that I like people. I like people who seem to like me, and they sometimes fake it so well that I take it seriously and get chatty. Most people I don't show this liking to and will remark the weather or something, but when a young girl asks me how I feel about her, I tell her. I say she's pretty but that I'm old and that I understand that. I'm really a nice old man. I don't grope, grab, nor make sexual innuendoes suggesting I want to have sex. Asked on dates by some of these youngsters, I've turned them down kindly saying it was probably illegal if a cop saw me. I ALWAYS assume attractive people testing my kindness to be children of police officers, and the last girl to do this to me was in fact in training to be a social worker and was put up to it by a Crips gang member in the commonweath's attorney's office in Montgomery County, Virginia. The store owner was also a Crips member and I'd gotten along fine with him for thirty years. So, the suspicion itself, the practice itself, of treating kindness and authentic friendliness as sexual harrassment is a disease of our culture lately and the reason why residence facilities and stores are becoming deadly to the elderly. I will sooner or later get put away for this goodness of heart I have. I'm sure of it. I blame most of you commenting on this site but for a couple or three or four of you. Putin, nuke this horrible country. It's on drugs and it's gone evil.
Kenneth Wade Wilson
8:51 PM
July 03, 2015
I'm reading through these comments and find most of them to be by incompetent, poorly trained workers in such facilities. A quality facility EXPECTS demented behaviors from lonely, unhappy abandoned old people living there, and tolerates it while training the patient to the degree possible to improve, which should be done by empathy, friendship and proper nutrition, exercise and known solutions for various symptoms of dementia, such as kelp and adrenal boosters, acetyl choline elevation via CDP choline supplementation, and plenty of on line activity to stimulate the minds of the residents. The problem with most of these comments is I suspect they are by the kind of selfish people who expect to be treated respectfully and pleasantly by the dying and the aged, and this is why they become so intolerant of the residents and seek legal instead of alternative solutions. Clearly, we have here a case of dementia among the young, and they are going to be horrible when they end up locked in a facility themselves. Lor' save us from our juvenile tendencies.
8:25 PM
July 03, 2015
Sexual harrassment by tenants in nursing homes and assisted care facilities should not be considered harrassment by the staff. If the would be employee considers it harrassment, then the employee should not be hired. I make exception for physical assault. Violence or fondling by patients should be defended against by warding off and if need be, by self defense followed by friendship as if the incident was rough housing. The problem with any kind of enforcement against patients and visitors is that it is often abused by staff who themselves are paranoid of losing their jobs or being blamed falsely by patients. Unless there is entercourse, forceable rape or injury, then there has been no incident. Keep in mind that patients are never there voluntarily and staff are there to be servants, not masters. They are PAID to put up with demeaning incidents and should be paid well for it the more tolerant they are of it. I was harassed by Teresa Taplin of Meadow Glen in Henrico, for no reason at all. I responded kindly by saying I could stay away if she wished and that I would. She asked me, as I was walking away courteously, if I was harrassing her. Clearly insane and should have been a patient herself. The work is highly stressful and I sympathize, but she should NOT have had an ombudsman participating with her in the harrassment of me. I was raising my voice to my mother about trust matters, for my mother can't hear me nor can she stay focused on a topic unless spoken up to. I now no longer talk to Mom and MOm calls me and the operator manipulates the volume so she can't hear me, an ongoing harassment of me by the staff for no reason. The ombudsman system is all female and I am male. Clearly, a useless system of justice and a recipe for death housing the elderly. My mother is being stunned regularly with a stunner and I can't do anything about it. Democrats. Women. Wrong psychological profiling by the government ideologues and law makers and of course the mental health and medical professions. Quack country, quack sloth by all around including tenants who should be treated with enough honesty to make them behave themselves but not abuse them violently nor with stunners, microstimulators nor psychiatric meds. Citicoline would help immensely but of course is not, for that isn't something a doctor can make five bucks a pill on.
Connie Grajczyk
7:05 AM
May 27, 2015
All harassment allegations should be taken seriously and investigated.
Renee K
1:05 PM
May 25, 2015
All harassment allegations need to be taken seriously and investigated.
Lori Craig
10:34 AM
May 25, 2015
Employers need to have a policy in place for employees and educate and in service them more often
Lori Craig
10:31 AM
May 25, 2015
Harassment is unacceptable in nursing homes and hospitals lawsuits have been filed in Nursing homes
Bonnie Ferrebee
9:34 PM
May 24, 2015
Employers must maintain a policy and procedure that addresses sexual harassment. Employers should regularly train its employees on how to react. The employer must investigate and respond to complaints appropriately.
susan abbott
4:03 PM
May 18, 2015
all harassment should be taken seriously
Joseph Armendariz Jr.
1:46 PM
May 03, 2015
At the facility where I work, we had a resident who was making harassing comments to a female dietary aide about her weight, on several occasions. She complained to me, the dietary manager. The first time she made a verbal complaint, I had asked her if she let the resident know that the comments were inappropriate and/or offensive. She stated she had. The next time she complained, I wrote down the details of the interaction and wrote a memo to the administrator and director of nursing. Since the resident had already offended several nursing assistants, he was removed from the facility. As others have said, if nothing is said or done about the harassment, it won't be stopped. We all need to report any harassment as it occurs and supervisors need to inform the administrators and other department heads.
4:58 PM
April 16, 2015
All harassment should be taken seriously. No one should turn a blind eye
Emelina Sicat
1:01 AM
March 19, 2015
The facility has the legal responsibility to address and prevent sexual harassment in the workplace. Otherwise there will low employee morale, low productivity and lawsuits
Emelina Sicat
12:55 AM
March 19, 2015
The employer or facility has the legal responsibility to maintain a workplace that is free from sexual harassment, otherwise there will be a low employee morale, low productivity and law suits
12:17 AM
March 03, 2015
There is a resident where I work that harasses me everytime I am down his hall. It is verbally, mentally, emotionally and he is allowed to get by with it. I have reported it time and time again and nobody does anything. They give him a talking to but he always comes out the winner in the end. Because they nail it with you didn't treat him with respect. Where does a person go to report this mess? I'm in nebraska
Eileen Moxley
11:23 PM
October 01, 2014
I was sexually harassed by a fellow Resident in a facility where we are both residents. First it was disrespectful gestures, stalking and frequent phone calls and then he grabbed me. I had to change my phone number because he called me after he was told to stop calling me. I complained to the Assistant Director, so informed the Director because we were both residents, though he was old enough to be my father. I told him as much. The Director told him not to speak to me and stay away from me. The Director came to me the first few days, after she spoke to him, to ensure that he was not bothering me. He did not bother me for about 3 months. Then he started speaking to me when no one was around. Once he convinced another resident to invite me to his weekly card game. The climax was when he got on the elevator with me. I jumped off before the doors closed. I complained to the Director again. This time she remarked, "no one else is complaining". This time I started informing the other residents of the incident. The residents were very surprised and upset. The Assistant Director approached me today and informed me that I shouldn't tell people because he could come after me because he is not bothering me anymore. I told her that people have a right to know and he stopped before and started speaking to me again after some time passed. I refuse to be silent about his negative behavior. It seems that the management is more concerned with protecting the predator than the victim. I have given them written notice that I will be leaving at the end of my lease.
name withhelad
10:06 AM
June 12, 2014
well unfortunately i am a private pay CNA that has no one to help me. the husband has groped grabbed and made gross remarks. i told his wife, well she just said i dress too provacatively. i wear scrubs and NO make up. but i dont want to lose my job so i put up with it. i also called the son who is the poa ..he lives out of state he was gonna help me but my resident she doesnt want the confrontation from her son so now i just let him kno whats going on...but his hands are tied he says...
12:00 PM
April 18, 2014
Tell someone staying queit is a part of the problem !!!!!
ellen carville
8:17 AM
April 01, 2014
All harassment complaints should be taken seriously and handled with right away.
Gina Haas
8:41 PM
March 17, 2014
I have worked in the health field over 20 years and I just started a job 5 months ago and one of the residents will not stop harassing me. I am professional but enough is enough, I have told my Executive Director several times and really all she says is document and I do. I just really started there and love my job but I really considering trying to find another one. This resident does not like me and she one person that always has to be angry at someone, argue and criticize no matter what.
1:54 PM
February 14, 2014
What is the mgmt rights when physicaly and verbaly being attacked.
11:16 PM
January 21, 2014
What if you feel you are being harassed by patient family?. Not sexual, but by the family member talking to coworkers and other pt family members in a negative way about the nurse. Daily. And tries to view nurses private facebook through coworkers. What are our rights when the stress now effects my performance and work relationships?
anonymous cna
11:48 AM
January 21, 2014
We have been sexually assaulted and physically assaulted by one resident repeatedly I have reported it verbally and writen many employer only laughs and makes excuses for this man.he was kicked out of our facility prior to his coming back for physical and sexual assault my employer knowingly put female staff in harms way by allowing him to return only to keep assaulting us with no reproductions.they have kept assigning females to his room.I'm tired of their b.s and now know I can take legal action on my employer for failure to protect me and others.thank you for this informative page.
sara edwards
12:07 PM
January 10, 2014
Harassment weather it is sexual Harassment in the work place should be handled i a more timely manner by the management staff, it should never have to get to the point where there is a lawsuit. And I for one am glad that residents in their right minds are held accountable for the harassment. I have seen far to many of them think they can get away with everything just because they are in a nursing home
8:59 PM
January 03, 2014
Harrassment is a serious issue in healthcare facilities and must be addressed immediately.
Deborah Callaway
8:57 PM
January 03, 2014
Harrassment and luid comments must be addressed immediately and brought to the attention of the Administrator to prevent further involvement and put a stop to the verbal and physical assault
Susan Simpson
3:26 PM
September 26, 2013
The handling of reports of harassment is very important, documentation, and training also improtant.
tonya keyes
3:02 PM
September 24, 2013
Harrassment is a serious matter and should be reviewed at the time of hire and also every year after hire.
Giovanni Laurel
8:38 PM
August 13, 2013
At times harassment is mentioned at a uncontrollable stage. When it should be dealt with at the infancy stage and follow up on the behavioral issue to redirect or switch the care giver. in any case it has to be dealt with at the time of occurance to help prevent it.
Laura miller
4:59 PM
July 11, 2013
Please know what harassment is and report it.
Sue Zins
6:33 PM
June 11, 2013
What happened to the golden rule "Do onto others as you would want done to you" Having respect and dignity for other people is so vital and we all took that seriously, then we would not have this harrassment issue.
Sandra Barker
6:01 PM
June 07, 2013
Employer's must take steps to educate staff on what harassment is and how to report harassment. Written policies should be developed to ensure all steps are taken to resolve harassment claims without retaliation to the employee. Immediate steps should be taken to remove the employee from the situation. This can include reassigning the employee to another patient. Employeers can be held legally responsible if they choose to ignore the complaint.
Mary Davis
8:22 AM
May 31, 2013
Harassment needs to be taken seriously. When management turns a blind eye the employees know they do not have support. The result it ongoing harassment and no one will take action. Management must show employees action will be taken according to written policy. That is the only way harassment will be stopped.
pamela bartolomei
10:57 PM
May 29, 2013
Unwelcome comments and touching by residents toward employees has resulted in lawsuits against the facilities. Complaints about any hostile environment must be acted upon, even if the resident involved is mentally deficient. Records of the incidents, and action taken toward prevention or escalation of the behavior is important for legal defense. Options for the victim must be made to prevent further incidents.
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