Sexual Harassment by the Uninhibited

By: Rita R. Kanno

Many of us know someone residing in a senior living community or long-term care facility and have heard stories of residents losing their inhibitions. There are stories of seniors being rude, saying things that are inappropriate, and experiencing sexual disinhibition. What we have not heard though is what happens when a caregiver is sexually harassed by a resident. Facilities that do not have proper policies and training in place may be faced with a lawsuit.

Dealing with harassment in nursing homes or senior communities is complex because, although the nursing home is the senior’s residence, it is also a facility where an employer must provide a harassment-free workplace. At the heart of the situation is the intersection between healthcare laws and employment laws – providing a safe place for seniors who can no longer care for themselves, while at the same time providing a safe workplace for caregivers and other staff members.

Sexual Harassment in the Workplace is Never Acceptable

Sexual harassment in the workplace, whether it is by a senior resident, patient, or co-worker is not okay. When healthcare providers are dealing with the senior community, many of which may have lost their ability to behave in a socially acceptable manner, the difficulty becomes navigating between expecting inappropriate behavior and having to accept being the recipient of inappropriate behavior. While there is a patient-provider or resident-caregiver relationship, when the provider/caregiver is made to feel uncomfortable or unsafe, there must be a way to help keep staff members safe.

On the flip side is caring for a resident population that consists of seniors living with dementia, Alzheimer’s, or other mental impairments, which may be the cause of the unintentional, inappropriate behavior. We do not want to live in a world where members of our senior living community are kicked out of care facilities and forced to live on the streets because they have a disease that prevents them from controlling their actions. At the same time, employers who do not set out formal policies and procedures in dealing with these situations may find themselves defending sexual harassment and/or sexual battery lawsuits.

How to Manage the Situation

One of the most common mistakes employers make in dealing with harassment by residents is to tell employees it is “part of the job” and to “just deal with it and go back to work,” but they should be keenly aware that courts will impose liability on employers who take this cavalier approach to dealing with employee complaints of harassment at senior living facilities. However, there are steps employers can take to minimize this liability:

1. Maintain an anti-harassment policy that applies to conduct of non-employees, such as senior residents interacting with employees. The policy should set forth explicit instructions on reporting the conduct and provide the employee with the option of reporting such conduct to HR or corporate leadership, and not only to their direct supervisor. A strong policy will require supervisors who witness the conduct or who have been told of the conduct to report the harassment to HR.
    
2. Implement resident and family member agreements where the individual or family member agrees in writing to abide by certain standards. This will make it much easier to transfer a resident out of the facility where the harassment is more than a single isolated incident.
    
3. Training and re-training employees on the potential issues that arise when caring for senior residents and how to respond to inappropriate conduct by a resident. Many senior living communities have policies in place that teach employees to stand up to the resident and tell the resident that the behavior is inappropriate and will not be tolerated. Obviously, residents with mental impairments may not appreciate the message, but some studies have shown this response empowers employees to report the incident in the hopes of rectifying the problem.
    
4. Employers should respond to all complaints immediately. A thorough investigation must be conducted and documented. As part of the investigation, all individuals who may have knowledge about the alleged harassment should be interviewed, and not just the victim and the harasser. Often times, victims may choose to report the incident to a co-worker rather than a supervisor or HR. In those situations, the co-worker should be interviewed as well.
    
5. Employers must act in response to an employee complaint. In a situation where a female resident is accused of harassing female caregivers, one solution would be to no longer permit female caregivers to work with this female resident. If the employer continues to receive complaints of harassment by the same senior resident, it may be time to have a conversation with the resident’s family about removing the resident from the facility. If the facility knew or should have known of the risk and failed to remedy or prevent the harassment, the employer may be on the hook for the non-employee resident’s inappropriate conduct.

There is no easy way to deal with the unintentional harassment by a resident who suffers from dementia, Alzheimer’s, or any other mental impairment. Being proactive and implementing preventive measures may help shield employers from liability by a court.