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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 tboehm@laborlawyers.com or (404) 231-1400.

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