Home Health & Hospice Week

Quick response time to reports is key.

Sexual harassment is more than just a national headline-grabbing topic; it's also a potential violation that could close your agency's doors for good if you lack the proper policies and procedures.

The healthcare setting is complicated. Not only do you have to worry about harassment originating with your employees, but also how to deal with harassment that comes from patients. Providing medical care - particularly in the home - is necessarily a very physical, intimate job, which only creates more opportunities for medical professionals to be harassed or to inflict harm on patients.

"For healthcare providers in the United States, the risk for nonfatal violence in the workplace is 16 times greater than that for other workers," says physical therapist Jill S. Boissonnault, associate professor at George Washington University in Washington, D.C., and co-author of "Prevalence and Risk of Inappropriate Sexual Behavior of Patients Toward Physical Therapist Clinicians and Students in the United States" in the August 2017 volume of Physical Therapy journal.

"Inappropriate patient sexual behaviour [IPSB] is directed at clinicians, staff, or other patients and may include leering, sexual remarks, deliberate touching, indecent exposure, and sexual assault. Inappropriate patient sexual behavior may adversely affect clinicians, the organization, or patients themselves," the article reports. Though their research focuses on PTs, other healthcare works certainly are not immune.

Title VII of the Civil Rights Act of 1964 specifies sexual harassment as a form of sex discrimination. The U.S. Equal Employment Opportunity Commission describes how the safety and comfort of a workplace can be compromised by untoward behavior: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment." If you don't already have policies and procedures in place for sexual harassment, don't wait.

Agencies should have P&Ps to help employees navigate workplace misconduct, including specific instructions for harassment by co-workers, superiors, or patients.

These policies should provide guidance on how employees can complain, as well as reassure them that they won't lose their jobs for lodging a complaint against a colleague or a patient, says Fisher Phillips, a law firm focused on workplace law, in an August 2010 issue of its healthcare newsletter, Healthcare Update.

Failing to have those policies - and follow them - can mean a big lawsuit payout that could threaten your agency's existence.

For example: Fisher Phillips notes a 2009 case where the EEOC sued HHA Nurse One/Team One, alleging that the company condoned a sexually hostile work environment and retaliated against an employee for complaining. The agency received 25 written reports from female certified nursing assistants (CNAs) detailing sexual harassment by the same client. The agency continued to place female CNAs in the home, instead of taking steps to stop the behavior. When one CNA warned a new CNA about the client and the client found out, the client demanded an apology. The CNA refused, and Nurse One/Team One fired her.

After the CNA filed a charge with the EEOC, the Commission sued Nurse One/Team One, arguing that the company was aware of the client's behavior yet continued to mistreat the female CNAs by sending them to the client's house and not dealing with the client's behavior. "There is no excuse for knowingly and repeatedly subjecting female employees to a sexually hostile and abusive work environment," the EEOC said of the case. The case ultimately settled, but should remind agencies "that a patient care entity cannot ignore sexual harassment by paying customers," Fisher Phillips warns.

Another example: Law firm Hunton & Williams highlights another case from 2010, in which the EEOC sued the parent of Synergy Home Care. A group of female employees' duties included sleeping at the client's home overnight, and the client allegedly fondled the female employees, made suggestive comments to them, and accosted them in their sleep. The employees allegedly complained to several managers and requested to be transferred, according to Hunton & Williams.

"Many employers and managers may not realize that, as the [Synergy] lawsuit urges, an employer may be 'responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace,'" Hunton & Williams says on its blog. "For an employer to be liable for nonemployee harassment, the employee must show that:

(i) he or she was subjected to unlawful harassment on the basis of his or her sex;
(ii) the harassment was unwelcome;
(iii) the harassment was severe or pervasive enough to affect a term, condition, or privilege of his or her employment, and
(iv) the employer knew or reasonably should have known about the harassment by the third-party and failed to take prompt remedial action." The last item is often the key deciding factor for a suit, the firm notes.

Take These Steps To Protect Your Employees - And Yourself

Make sure that your agency includes training on sexual harassment and misconduct in new employee orientation, and provide additional - more frequent - education as well, so everyone is on the same page. These trainings should guide staff on how to react in the moment if they suffer harassment from a patient, and how to report any incident, whether it originated with a patient or a co-worker.

Creating multiple avenues for employee complaints, such as an "open door" policy or an employee hotline, is a good idea, Hunton & Williams advises.

Top tip: Teaching staff how to diffuse a situation, especially if it involves a patient, is crucial. Empower staff to speak up if they feel uncomfortable; some people genuinely may not realize that their own behavior is discomfiting for others.

Your agency should treat any allegations of abuse or harassment as serious and investigate immediately. If an employee comes to you with allegations, the most important thing you can do right off the bat is believe him or her.

But choose your words carefully. "Managers should be careful to avoid assuring an employee that he or she will comply with a request that 'nothing be done' or to keep the allegations confidential," says Katherine Dudley Helms, office managing shareholder at Ogletree Deakins in Columbia, South Carolina, in a recent post on National Law Review.

The power differential in a small agency can be especially stark, and handling allegations against a team member can make an investigation difficult, Dudley Helms notes.

The same goes for a paying client, Hunton & Williams says.

But don't hesitate to take swift, decisive action against anyone responsible for wrongdoing. "Healthcare entities must take these actions in spite of the prospect of losing a significant revenue generator or a critical skill," Dudley Helms urges.

"Failing to address the situation creates legal liability and sends a loud negative message to employees regarding the importance the organization places on its workforce versus certain key employees," she adds.

Bottom line: "When a report of harassment is received, respond promptly, even if the alleged harasser is not an employee," Hunton & Williams stresses.