Is a skilled nursing facility liable for sexual harassment by its residents when it claims that “resident care” limits its options to protect its employees?
Human Resource Perspective – Sexual Harassment
Policies/Procedures: The Human Resource Manager must ensure that policies and procedures exist that address sexual harassment by residents and other third parties, as well as co-workers and supervisors. An anonymous and confidential reporting system, such as a hotline, must be made available for all employees to report harassment. Training: Regular training must be provided for all employees on how to respond if harassed by a resident, third party, co-worker, or supervisor. The employer must know to respond timely and appropriately by immediately investigating all complaints. If the complaint is substantiated, the employer should explore all available options, including, but not limited to, separating the resident and the employee, or assigning a co-worker to accompany the employee when caring for the resident. Auditing: The Human Resource Manager must develop and implement an audit, or an employee survey to periodically ensure that the policies and procedures are current, and that all employees are trained on how to respond. The audit results should be summarized and reported to the Administrator and senior management during a department head meeting.
A skilled nursing facility respiratory therapist sued her employer, alleging that the employer failed to adequately address repeated sexual harassment against her by a resident for whom she was providing therapy.
The respiratory therapist also alleged that the employer retaliated against her because of the sexual harassment complaint. The court found that the employer knew that the resident had made allegedly improper sexual comments to female employees at a hospital during his hospitalization. The skilled nursing facility claimed that it met its burden to reasonably protect the employee by creating a plan of care addressing the resident’s inappropriate behavior. The respiratory therapist claimed that, despite the plan of care, the resident continued to harass her and her requests for help went without response.
The court rejected the skilled nursing facility’s argument that federal regulations governing long-term care prevented it from taking any actions that would absolve it from all liability. The court determined that all responsibility toward the employee could not be ignored in favor of resident care.
