Legal Eagle Eye Newsletter for the Nursing Profession(5)5 May 97


Quick Summary: Sexual harassment can take the form of a sexually hostile work environment.

   A hostile work environment can come from sexually discriminatory verbal intimidation, ridicule or insults, if sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.

   The mere utterance of an epithet which engenders offensive feelings in an employee is not sufficient to support a case under Title VII of the Civil Rights Act. To be able to sue under Title VII, the sexually hostile nature of the work environment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.

   An employer can be sued for the discriminatory acts of an employee only if the employer knew or should have known of the employee’s offensive conduct and failed to take steps to repudiate that conduct and eliminate the hostile environment.  UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT (TEXAS), 1996.

   The United States Circuit Court of Appeals for the Fifth Circuit (Texas) recently upheld a nurse’s sexual harassment claim against her employer, a nursing home, for sexual harassment by the male director of nursing.

   The nurse was employed as a treatment nurse, responsible for monitoring and treating decubitus ulcers and other skin-related conditions in the nursing home’s residents.

   The director of nursing made numerous inappropriate sexual comments to the nurse, asked her about her sexual habits and asked others about her sexual habits, in apparent seriousness and in apparent jest, joked in the presence of others that she must not know how to use condoms because she had seven children, etc. The nurse frequently asked him to stop making such remarks to her and about her.

   The director of nursing was also ruled guilty of sexual harassment for insisting that the nurse perform menial tasks related to her gender obviously not connected with her job description as a clinical nurse, such as refilling his coffee cup, washing dirty dishes for him and making photocopies.

   The nurse complained to the human resources director about the nursing director’s offensive remarks, as did another nurse who was being treated in a similar manner. The nurse did not specifically say in so many words that she was being sexually harassed, but did not have to, according to the court.

   The human resources director, according to the court, made no effort to investigate and did essentially nothing, except to urge the nurse to "hang in there." The court ruled that this provided substantial evidence that the nurse’s employer, the nursing home, had failed to take prompt remedial action upon an employee’s justifiable complaint of sexually hostile treatment on the job, as required by law. Farpella-Crosby vs. Horizon Health Care, 97 F. 3d 803 (5th Cir., 1996).

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