Don't close your eyes to workplace harassment: how to avoid yet another liability exposure that your facility doesn't need - not to mention staff discouragement - Feature Article

Nursing Homes, May, 2003 by Howard L. Bernstein, Victoria L. Donati

In recent years, the employment law spotlight has directed its beam on harassment in the workplace. Virtually every type of workplace and every industry has had its share of harassment complaints, and nursing homes have been no exception.

In many respects, nursing homes are particularly susceptible to such claims; problems such as verbal altercations relating to racial and ethnic discrimination and inappropriate hugging, touching, and other forms of sexual harassment often seem to dominate the claims. The nursing home is a dynamic environment:

A broad range of employees, service providers, residents, and family members are constantly present. Staff works long and often late hours, providing services of a private and sensitive nature in an atmosphere that can be "informal" or "homey." The issues and potential problems raised by harassment in the nursing home environment are compounded by the fact that many nursing home administrators and managers feel overworked and underpaid, and lack the time and visible support necessary to address such issues. Most administrators, however, do recognize that problems exist or that additional work is necessary to bring their workplaces in compliance with existing law.

There are urgent reasons for harassment issues to be addressed. The newspapers are rife with reports of workplace harassment. Courts and federal and state agencies (the U.S. Equal Employment Opportunity Commission [EEOC] among them) have become active in snaring employers who have not taken the necessary steps to protect themselves and to eliminate (or at least minimize) harassment in the workplace. In fact, the EEOC Web site (www.eeoc.gov) indicates a 4.5% national increase in discrimination claims of all types in the last year.

Moreover, the stakes have become painfully high. Potential damages from a single harassment claim easily reach into the hundreds of thousands of dollars and can run even higher in states without liability caps. These costs become even greater when one considers that with every charge or suit that is filed, administrators, managers, nurses, and other employees may face hours of depositions, interviews, and endless other litigation tasks that detract from providing quality resident care. With nursing home profit margins shrinking steadily--or dipping further into negative numbers-- there is simply no room in the operating budget to risk such liability. Administrators can no longer afford to ignore their obligations and hope for the best.

Fortunately, the courts have provided a relatively clear road map for employers seeking to avoid harassment liability under federal law--a road map that, upon reflection, is not as difficult to implement as one might think. Basically, the courts have said that an employer can avoid or drastically reduce the specter of harassment liability by taking tangible steps to enact and enforce an effective program against harassment. Such a program, when properly followed, will serve both to prevent harassment in the workplace and, should it occur, to provide a significant defense to liability in many instances.

As is often the case, the most difficult aspect of taking advantage of this opportunity is to actually take action. The steps are not difficult; they do take some time, planning, and resources, but not nearly as much as might be required if the facility permits harassment to continue.

What, then, must an administrator do to design and implement an effective program against harassment? The essential steps are:

Step 1. Adopt a comprehensive policy against harassment. This should be written in easily understood language that clearly defines prohibited conduct and provides, at a minimum:

* a definition that includes sexual harassment and harassment based on race, national origin, ethnicity, gender, age, disability, or any other personal characteristic protected by applicable federal, state, or local law, and applies to anyone who enters the workplace;

* examples of seemingly innocuous but prohibited conduct, such as crude jokes, gestures, slurs, innuendo, and other similar behavior;

* specified and mandatory procedures for reporting harassment, including multiple, clearly defined reporting routes;

* a guarantee of a prompt, thorough, and impartial investigation of each complaint;

* assurance that the complaint will be treated as confidentially as possible, noting, however, that some disclosure may be necessary to fully investigate and remedy the complaint;

* assurance of prompt and effective remedial action for any policy violations, including potential discipline up to and including termination;

* assurance that anyone who complains or serves as a witness or participant in an investigation will be protected from retaliation; and

* a process that sanctions retaliation with disciplinary action up to and including termination.

Step 2. Effectively communicate the policy and republish it at least annually. The policy should be included in all handbooks, posted on bulletin boards, available for pickup in a discreet location, highlighted during orientation, and discussed at staff and management meetings periodically.