Sexual Harassment: Employer Must Protect Female Caregiver From Male Patient, Court Rules

Legal Eagle Eye Newsletter for the Nursing Profession

December 1997

   Quick Summary:   Female caregivers could sue the facility for sexual harassment after they complained of fondling by a retarded seventeen year-old resident who stood over six feet and weighed over two hundred pounds.

   The definition of sexual harassment includes being subjected to physical conduct of a sexual nature which is made explicitly or implicitly a necessary condition of an individual’s employment, leading to an intimidating, hostile or offensive working environment. UNITED STATES COURT OF APPEALS, EIGHTH CIRCUIT (MINNESOTA), 1997.

   Female caregivers at a facility for developmentally disabled adolescents and adults complained to management they were being accosted and fondled by a certain seventeen-year-old resident. He stood over six feet tall and weighed over two hundred pounds, but had the functional capacity of a two to five year old child.

   Managers at the facility were wrong for not heeding the female caregivers complaints, the U.S. Circuit Court of Appeals for the Eighth Circuit (Minnesota) ruled. It was true that the resident’s conduct sprang from his inability to control his impulses due to profound mental retardation. However, the facility could not wash its hands of responsibility, and could be held responsible in a suit for sexual harassment.

   The facility should have done a sexuality assessment. According to the court, such an assessment would have prompted the facility to assign male caregivers who would not be taken as sexual objects and to bring in caregivers of either gender capable of physically restraining this resident. Crist vs. Nursing Home, 122 F. 3d 1107 (8th Cir., 1997).