When residents abuse employees: abuse cuts two ways, and administrators can be caught between different—and conflicting—sets of laws in trying to manage it

Nursing Homes, Oct, 2005 by Jon Zimring

In long-term care, a great deal is done to protect residents against any form of abuse--and rightfully so. Residents are the reason LTC facilities exist; they are the people who the industry serves--its customers. Aside from the fact that licensing and payment depend on ensuring that residents are well protected from any form of abuse or neglect, having systems and procedures in place to protect residents is the right thing to do. It is the very least that families expect when they place their loved ones in a facility's care.

But what are the responsibilities of an LTC facility when the residents abuse staff? In particular, what must a facility do when a resident creates a hostile or abusive working environment for a staff member? Sooner or later, in almost any facility, a resident will lash out in some way against his/her caretakers, either because of diminished capacity or judgment, unhappiness with his/her circumstances, or simply because the resident wasn't the nicest person in the world to begin with.

When residents abuse staff, many supervisors rely upon a version of the old business adage that "the customer [in this case, the resident] is always right." In other words, the complaining employee often is advised that dealing with sometimes difficult residents is simply a part of the job. No matter how true this is, however, supervisors who rely on this advice may be doing so at their peril. Under the wrong circumstances, such advice can lead to disaster.

The "Iowa Slap Case"

The recent Iowa case of Van Horn v. Specialized Support Services, Inc. (SSS), involved a situation that is probably not unique or unlikely to happen in various forms in LTC facilities. Van Horn was a member of the direct-care support staff at SSS, an LTC company serving the developmentally disabled. She was assigned to a resident who was transitioning from living in his parents' home to living in a "waiver home" (a separate house that his parents had purchased and set up as an assisted living residence for him). During the course of his transition, the resident increasingly became focused on having physical contact with the employee. Among other things, over a period of months, the resident repeatedly suggested to Van Horn that they sleep in the same room together, kissed her on the cheek, grabbed at her breast while giving her a hug, insisted that she sit next to him on a couch, and put his legs across her lap while she was sitting in a chair and then tried to lay on top of her when she transferred to the couch.

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Van Horn had been trained to maintain notes of the resident's behaviors, and she faithfully did so. She also advised her supervisors of the difficulties she was having with the resident, and she requested assistance. On a number of occasions, Van Horn requested self-defense training to protect herself from the resident's physical advances. Although a behavior modification plan was developed to deal with some of the resident's issues, the general response from management was that Van Horn was simply going through an unfortunate part of the business and that it was part of her job to deal with it.

Unfortunately, despite Van Horn's best efforts to control the resident, his inappropriate and sexually suggestive behavior escalated, culminating in an incident that led to Van Horn's termination. One morning, the resident resisted getting up off his bed to perform morning hygiene. This was one of the behaviors for which a specific protocol had been developed for the resident. The protocol involved a verbal prompt--"Hands, please"--followed by the staffer reaching out his/her hands to the resident to help him up. When Van Horn did this, the resident giggled, reached out his right hand, and pinched Van Horn's right breast near the nipple. Van Horn reacted to the painful pinch by slapping the resident on the left side of his face. The resident released his grip and put his head down toward his shoes as Van Horn backed away.

SSS investigated and reported the incident to Iowa regulatory authorities. Following the investigation, SSS's executive director decided to terminate Van Horn. Although he understood the circumstances that led to the slap, he based his decision on his stated feeling that "slapping a mentally retarded person was never justified."

Van Horn sued SSS and its executive director for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, the federal law prohibiting harassment or discrimination on the basis of gender in the workplace. The court sustained Van Horn's claim that she was wrongfully terminated for slapping the resident. In support of this decision, the court found that SSS's unresponsiveness and lack of sensitivity to what Van Horn was going through with the resident rendered her slap "reasonable" as a matter of law and something for which she could not lawfully be terminated. The court awarded Van Horn compensatory damages, damages for emotional distress, and punitive damages for the "reckless indifference of SSS toward the rights of Ms. Van Horn and other SSS employees."