Legal Eagle Eye Newsletter for the Nursing Profession (6)8 Aug 98


   Quick Summary: Employees of long term care facilities have the right to a workplace free from sexual harassment from residents.

   A long term care facility cannot ignore its responsibility to prevent sexual harassment of employees, in the name of patient care. UNITED STATES DISTRICT COURT, MASSACHUSETTS, 1998.


   The U.S. District Court for the District of Massachusetts noted there was no question the long term care facility knew this resident, a sixty-nine year old male who was bedridden and depressed, often made inappropriate sexual comments to female caregivers. It was reported to the long term care facility in his discharge paperwork from the acute care hospital from which he was transferred. Upon arrival in the long term care facility, he was evaluated by physicians and social workers who confirmed he was depressed and was in the habit of making inappropriate sexual comments to female staff.

   The long term care facility formulated a care plan to address the resident’s inappropriate behavior and his mental health issues. The care plan required all employees responsible for his care to note specific instances of inappropriate conduct in his chart and to indicate to him immediately that his behavior was unacceptable. As his acting out continued, an outside contract agency was retained to provide counseling and psychotherapy for the resident.

  The court noted the facility never gave the resident any reason to believe anyone approved of or would tolerate his sexually inappropriate behavior.

   A respiratory therapist, who knew the resident well, became concerned he was looking down her blouse during a treatment and struck the resident. She remarked immediately to her co-workers she was going to be fired. She was fired, but then turned around and sued the facility for sexual harassment.

   The court stated in general terms the law does hold employers responsible for acts of sexual harassment by customers or patrons directed toward employees in the workplace, if the employer knows about it and fails to take immediate corrective action. In general, merely having a written policy against sexual harassment does not shield an employer from legal liability.

   In this case, however, the court ruled the care plan and counseling and psychotherapy for this resident were the limit of what the facility had to do to avoid civil liability for sexual harassment of employees by this resident.

   The court also ruled this one incident did not create a hostile work environment for this employee. Nor was the facility aware prior to the one incident that this resident’s behavior created what this employee felt was a hostile environment, as she had never complained about caring for him. Lizenga v. Genesis Health Ventures of Massachusetts, Inc., 995 F. Supp. 226 (D. Mass., 1998).