Healthcare: Worker's Rights to Non-Biased Workplace

08.01.10

All long-term care facilities must occasionally deal with a hostile resident. Solving this problem is particularly difficult when that hostility is directed at employees with protected characteristics, such as gender or race. Most long-term care residents were born before the Civil Rights Act of 1964 and may have been raised with a different set of values or ideas of what behavior is socially acceptable. In addition, residents may have conditions that affect their mental capacity or ability to control impulsive behavior. When a resident's behavior interferes with an employee's performance or creates an offensive atmosphere in the workplace, it creates a hostile work environment.

As an employer, you have an obligation to protect your employees from such an environment. A facility will be liable for a hostile environment created by a resident if it knows or should have known about the harassment and fails to take immediate and appropriate corrective action. Addressing disruptive behavior by residents, however, may be limited by federal or state laws that grant residents certain rights. In Oklahoma, for example, long-term care facility residents have the right to receive services which accommodate their individual preferences, except where the health or safety of the individual or other residents would be endangered. While offensive remarks and socially inappropriate behavior may rise to the level of harassment, rarely will it pose a risk to the health or safety of other residents. In addition, federal law governing Medicare imposes significant restrictions on a facility's ability to unilaterally discharge a resident, even a disruptive resident.

Asking or expecting staff to accommodate harassing behavior is simply not enough. A facility that is unwilling to address harassing behavior will have no defense to an employee's claim of hostile work environment. Staffing modifications seem to be the most common and effective way of dealing with a hostile resident. The assignment of same gender or race staff to the resident or the assignment of a consistent caregiver with whom the resident has rapport may curb the opportunity for harassment. The facility, however, must take special care when making staffing assignments.

In a recent case of hostile work environment brought by a black certified nursing assistant who had worked at a nursing home, a court ruled that the nursing home's policy of honoring the racial preferences of its residents violated Title VII. The nursing home had adopted a policy of honoring the racial preferences of its residents in assigning healthcare providers based on its interpretation of state and federal laws that gave residents the right to choose providers. This policy lead the facility to tell the nursing assistant, in writing on her daily assignment sheet, that no black assistants should enter a particular resident's room or provide her with care. These race-based limitations caused the assistant to be depressed.

The facility's policy and its enforcement were compounded by racial comments and epithets from coworkers. Although these were reported to the unit supervisor and the epithets ceased, the assistant continued to be reminded by coworkers that certain residents were off limits because she was black.

After three months of employment, the assistant was fired. The explanation for her termination was that she delayed in aiding a resident following an alarm and used profanity while doing so. Another assistant who also failed to respond to the alarm was not disciplined.

The court found that a reasonable person would find the environment hostile or abusive, and the principal source of that hostility was the facility's willingness to accede to the patient's racial preferences, a policy that was not required by either state or federal law. According to the court, the nursing home fostered a racially charged environment through its assignment sheet that clearly and repeatedly reminded the assistant that certain residents preferred no black assistants.

The court provided guidance for facilities that face issues of this type. "A long-term care facility confronted with a hostile resident has a range of options. It can warn residents before admitting them of the facility's non-discrimination policy, securing the resident's consent in writing; it can attempt to reform the resident's behavior after admission; and it can assign staff based on race-neutral criteria that minimize the risk of conflict."

The court's advice on assignment of staff is critical: instead of prohibiting its black employees from providing services to hostile residents, the facility should have advised its employees that they could ask for protection from those residents through reassignment. That way, the facility would not have been imposing work limitations on its black employees; instead, it would have been protecting its employees from a hostile work environment.

The author, Rebecca M. Fowler, may be contacted at rfowler@dsda.com

Media Contact

Marketing Manager
P: 405.319.3502
F: 405.319.3532

People


Industries


Practices


Related Files


Related Links

Doerner Happenings

Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

Oklahoma Employer's Law Blog

 


RECENT NEWS

10.02.17 Doctors, Drop Your Pens: The DEA and Voluntary Surrender

10.02.17 ELR: Mandatory Five-Minute Pre-Shift Briefings are Compensable Work Time Under FLSA