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Sexual Assault: Disability Discrimination But Not Sexual Harassment Found By Court.
Legal Eagle Eye Newsletter for the Nursing Profession
The hospital did not know about the harassment until the nurse reported it. Once she reported it the hospital fulfilled all its legal duties as to sexual harassment, which left the nurse no grounds to sue her employer for the harassment and the assault.
Then the nurse reported she had PTSD that her physician characterized as a disability. The nurse requested but was denied reasonable accommodation for her disability. UNITED STATES DISTRICT COURT OHIO December 8, 2017
A female licensed practical nurse worked in a Veterans Administration facility along with a male nursing assistant. For three years he bothered her with sexual talk, inappropriate gestures and unwanted touching. Then one day it escalated to an overt rape attempt in a patient’s bathroom.
Finally the nurse reported to her charge nurse what had been going on all along and the blatant attack that had just occurred. The charge nurse immediately reported the nurse’s complaint to the VA police who contacted the local civilian police department. The perpetrator was also immediately transferred to a facility in another city. The police investigation resulted in criminal convictions for which the perpetrator was fired from the VA.
Friends of the perpetrator threatened the nurse when they found out she reported him, but when the nurse reported those threats and the perpetrator’s friends were told to cease and desist, the threats stopped. The US District Court for the Northern District of Ohio ruled the hospital fulfilled its legal responsibilities as to sexual harassment of an employee.
The nurse could not sue for sexual harassment because she failed to notify her supervisors what her coworker had been doing, until it was too late.
Nevertheless, the nurse brought in medical documentation to her supervisors supporting a diagnosis of PTSD from the assault. The nurse’s medical documentation framed her PTSD as a disability and recommended a transfer for the nurse to a different unit than the one where she was assaulted or to a different facility as a reasonable accommodation.
However, based on other medical documentation that the nurse was fit to return to duty after a medical leave and the hospital’s policy in sexual harassment cases to transfer the perpetrator, not the victim, a transfer was not arranged. She was fired for failing to return to her job in the old location. The Court upheld the nurse’s right to sue for disability discrimination. The nurse’s PTSD is a disability. She notified her employer about her disability and requested a specific accommodation that would have been reasonable for which she had medical validation. In discrimination cases it is not the court’s place to second-guess the victim’s medical providers’ diagnoses. Federal regulations actually removed any guesswork for this case by specifically identifying PTSD as a disability.
Ryan v. VA, 2017 WL 6270209 (N.D. Ohio, December 8, 2017).More references from nursinglaw.com
http://www.nursinglaw.com/ptsd.htm
http://www.nursinglaw.com/PTSD-disability-discrimination.htm
http://www.nursinglaw.com/PTSD-discrimination.htm