Health Care Matters

A Complimentary Newsletter From:

Law Offices Of David S. Barmak, LLC

Managing Risk for Long Term Care and Health Care Providers

Volume 11, Issue 9                               ADVERTISEMENT                              SEPTEMBER 2010

In This Issue
Male Resident Catcalls: Compliment or Sexual Harassment?
For Your Information Q & A
Do You Employ Persons Excluded from Medicare and Medicaid Reimbursement?
David S. Barmak, Esq. 
David Photo
Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania 
 
Male Resident Catcalls: Compliment or Sexual Harassment?
By: David S. Barmak, Esq.
It's 3:00 am in a nursing home and a young female CNA enters a room shared by two old men.  As she enters, the two men whistle and catcall at her. Compliment or Sexual harassment?
 
On September 12, 2010, when Mexican television reporter Ines Sainz and her male colleagues entered the New York Jets football players' locker room after a game to conduct interviews, some players whistled and catcalled at her. After the incident became public, the Jets owner apologized but a number of commentators have inexplicably defended the players' behavior.
 
I have often been asked by female administrators to try to explain why many of their male employees continue to act in ways which are demeaning and disrespectful to female employees knowing well that their behavior is unlawful and puts them at risk of losing their job.

This incident with the reporter highlights the reality that many men in our society still think it is socially acceptable for men to whistle at females, especially if their male friends are watching and condoning their behavior.
 
The reporter was asked if players' comments made her feel uncomfortable.  "Uncomfortable in the way that you know that you are in the focus," she said. "OK, it's not the best sensation. But not uncomfortable in the way that I feel danger or sexual aggressive. No."  She added that she heard players say, "'Oh, look at that and that kind of thing that you know they are talking about you. But I never hear something sexual. I never hear something sexual. That part is important."  Nevertheless, Sainz did hear some comments.   "They talked a little bit in Spanish -- Bonita senorita -- it means pretty woman," she said. "So, I ultimately hear but it's not uncomfortable in the moment I hear. Only is in the way that 'OK, I don't want to have too much attention at this time.'"  Bottom line: Ms. Sainz said the catcalls made her feel "very uncomfortable".  She is caught in the middle of being honest but wanting to be able to continue her job as a television reporter.
 
How many female nurses and aides, dietary workers and housekeepers, among others, have experienced intruding stares, offensive comments and intruding touches from male residents who are aware of their actions and knowingly direct their behavior towards the female employees in nursing facilities? From male employees? Far more than actually complain to their supervisors. In nursing homes, administration is usually predominately male while caregivers are usually predominately female.  It is critical that administration continue to recognize that even the smallest of sexual intrusions and innuendos by male residents and male employees who are aware of their actions and knowingly direct their behavior towards the female employees must not be ignored and is unacceptable within the nursing home. Why? Because, as Ms. Sainz said, it makes women feel uncomfortable.   
 
A critical distinction must be made between those male residents who are aware of their actions and those who are not. No doubt there are countless times when a male demented resident grabs, touches and says inappropriate things to a female caregiver. Often the only solution is to either have a male caregiver assigned to the male demented resident or to provide care in teams of two caregivers at all times. There is not much that can be done about verbal issues with a demented male resident. A psychologist and / or social worker is usually called in to help but the dementia is the major contributing factor. Unfortunately the dementia will not get better and will likely get worse. Nevertheless, if administration does not provide full support and take complaints about the male demented resident seriously, the nursing home will have major troubles if the CNAs refuse to care for these particular residents because of what they perceive as "sexual harassment".  Transferring these male demented residents to other facilities is very unlikely if they are not a danger to themselves or others.
 
Studies have supported that very few women feel flattered and most women feel insulted, angry and threatened by catcalls, verbal slurs, pinches and stalking.  Only a few women have not experienced some form of unwanted public attention by men. Carol Brooks Gardner has written a book, Passing By, which examines these types of gender-related public harassment. Based upon interviews with hundreds of women and men, she documents these types of indignities that women experience in public places. The typical pattern of harassment occurs when men take advantage of a woman's momentary or permanent vulnerability.
 
A study conducted by psychologists at Rutgers University in New Jersey found that young women subjected to high volumes of whistling and catcalls can be subject to lasting low self-esteem.

Any process that dehumanizes our co-employees must not be tolerated. Studies are examining this type of social behavior in public places but where could this be more important and apparent than in a nursing home where a male resident knowingly dehumanizes a woman who is taking care of his every physical need which includes changing his sheets, bathing him, feeding him and attending to his other personal needs? The resident treats the CNA as he may have always done with women prior to admission to the nursing home or he may be try to impress his male roommate and prove that his masculinity is still alive and well or he may to try to intimidate the CNA as a way to remind her that the room is male turf. 
 
If our nursing homes are going to improve the quality of care that is provided, there must be unconditional support and respect for our CNAs, the front line of quality care. Listening and effectively responding to our CNAs' complaints and concerns about the perceived abuse that they receive from the male residents and male employees who are aware of their actions and knowingly direct their behavior towards female employees must become a top priority for administration - because the stakes are enormous.  Substandard quality of care can easily result in Department of Health deficiencies, government allegations of false claims and professional liability lawsuits, all of which lead to reduced reimbursement as well as greater employee turnover and reduced employee morale. Oh yes - sexual harassment is unlawful!  A simple mantra for our nursing homes should be: "respect leads to the highest quality of care". 
 
United States Equal Employment Opportunity Commission
 
Facts About Sexual Harassment
 
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of 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.
 
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser's conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
 
When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.
 
Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
For Your Information Q & A
Question: 
I am a supervisor in a nursing home . I do a lot of hiring and, unfortunately, a lot of firing. I'm very worried that every employee whom I have fired might someday accuse me of discrimination - and they're right!  I do discriminate. I discriminate in favor of one employee (who keeps her job) and another employee (who loses her job).  Am I ok when I fire an employee who isn't cutting it on the job?   
Thank you, "Anxious"
 
Response:
Hi Anxious.  As long as the reasons you have for firing the employees are LAWFUL reasons then you have nothing to be anxious about.   Let's talk about what are  lawful and unlawful reasons.
 
Many of the day to day decisions that a supervisor makes are discriminatory. For example: you prefer pink uniforms to blue jeans. This type of discrimination is a matter of professional and personal choice. The manufacturers of blue jeans have no civil rights claims against you.
 
An insurance company charges higher rates for red cars driven by 20 year olds than green cars driven by 50 year olds. This is permissible.
Decisions, particularly in the employment environment, are considered to be unlawful discrimination when race, religion, national origin, ethnicity or gender are criteria used to cause one person to be treated differently than another; in other words, to be "discriminated against" on the basis of that particular criteria.  Please note that in some states sexual preference and marital status can also be the basis for unlawful discriminatory decisions.
 
While you appear to have nothing to be anxious about regarding unlawful discrimination, I do suggest that you examine the lawful hiring criteria that you are using to make your hiring decisions - e.g.; are you using your job descriptions? - to minimize expensive and time consuming employee turnover. Please see future newsletter articles dealing with this topic.
Preventing Sexual and Other Forms of
Harassment in the Workplace
HIGHLIGHTS IN THE DEVELOPMENT OF THE LAW OF WORKPLACE HARASSMENT
  • 1964: The Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, national origin and sex.
  • 1967: The Age Discrimination in Employment Act forbids employers to discriminate against individuals, over 40, on the basis of their age.
  • 1968: The Equal Employment Opportunity Commission (EEOC), the agency that enforces federal antidiscrimination laws, finds that an employer engaged in national origin discrimination by permitting employees to harass a Polish-born co-worker with demeaning conduct such as making him the butt of "Polish" jokes.
  • 1980: The EEOC issues guidelines interpreting Title VII to forbid sexual harassment as a form of sex discrimination.
  • 1981: A U.S. appeals court endorses the EEOC's position that Title VII forbids sexual insults and propositions that create a "sexually hostile environment," even if the employee lost no tangible job benefits as a result.
  • 1986: the U.S. Supreme Court rules that a woman who allegedly had sex with her boss because she feared losing her job if she did not, could sue for sexual harassment. The question is not whether her conduct was voluntary but whether the boss's conduct was unwelcome. An employer is liable for sexual harassment committed by supervisors if it knew or should have known about the conduct and did nothing to correct it.
  • 1990: The EEOC issues a policy statement saying that sexual favoritism, if advances are unwelcome or favoritism is so widespread as to be an unspoken condition of employment, can be sexual harassment.
  • 1998: the U.S. Supreme Court creates a new rule for employer liability where a supervisor creates a hostile environment for a subordinate: an employer is liable for an actionable hostile environment created by a supervisor who has immediate (or successively higher) authority over the victimized employee if the harassment results in a tangible employment action, such as a dismissal or a denial of promotion.
  • 1998: the U.S. Supreme Court creates a new rule for employer liability cont.:  The employer is also liable for a hostile environment created by a supervisor even where no tangible employment action has occurred, unless (1) the employer has taken reasonable care to prevent and correct sexual harassment, and (2) the employee unreasonably has failed to avoid harm. Proof that the employee failed to use the employer's complaint procedure usually will be enough to show unreasonable failure to avoid harm.
  • 1999: The U.S. Supreme Court held in a case that an employer can avoid punitive damages for discrimination if it has implemented, in good faith, an antidiscrimination policy.
  • 2004: The U.S. Supreme Court holds that in some sexual harassment cases the employer can avoid liability by establishing both the reasonable care by the employer to prevent and correct harassment and unreasonable failure by the employee to avoid harm.
 
EMPLOYER POLICY MUST BE CLEAR AND, IDEALLY, PART OF A CORPORATE COMPLIANCE PROGRAM
  • A prohibition of harassing conduct
  • Zero tolerance for harassing conduct
  • All employees, regardless of rank, must comply with the policy
  • All complaints must be reported to the Compliance Officer to ensure that complaints can be investigated impartially as well as promptly
  • All complaints must be investigated discreetly, preserving confidentiality as much as possible
  • Employees found to have engaged in inappropriate conduct must be subject to discipline, up to and including dismissal
  • Retaliation must be prohibited against any employee who reports harassment or who cooperates with the investigating of that report
  • Vulgar language must be avoided because it contributes toward a hostile work environment
  • Work-related off-premises conduct must be viewed the same as on-premises conduct
  • Touching: It is easy to believe that physical touching can be consoling, however, "hands on " management often has gone too far. In some cases a single incident of sexual touching has created liability. Ask yourself: is touching one's fellow employee beyond a handshake really necessary?
  • Visual displays: Posters, graffiti, and other displays that address sex, race or religion can be offensive
  • Avoid talking dirty and telling jokes
  • Email: Evidence of harassing behavior has often come in the form of email communications.
CRITICAL STEP: IMPLEMENT A CORPORATE COMPLIANCE PROGRAM WHICH SHOULD INCLUDE A POLICY AND PROCEDURE TOWARDS PREVENTING SEXUAL AND OTHER FORMS OF WORKPLACE HARASSMENT.
Mission Statement - Reduce Your Risk Now
Our firm is dedicated to helping health care providers, in particular long term care facilities and their insurers, reduce costs by minimizing the risk of adverse events.
 
We do this by being proactive (pre-litigation strategies). This includes training and education of employees, review of policies and procedures, implementing communication channels, getting feedback through interviews and focus groups, and continuous monitoring and auditing. Vital to employee education is documentation training and effective communication training.
 
If an adverse event occurs, our response is promptly reactive (pre-litigation strategies). Mandatory, non-binding mediation is utilized whenever possible. Our goal is to quickly resolve disputes before they escalate and require resolution through the judicial system. To avoid a repeat occurrence, we continue staff training and education with a focus on prevention, as well as review and revise policies and procedures for greater effectiveness.
 
If a lawsuit is filed, the risk that existed has been realized (litigation strategies). Defense analysis, expert witnesses, focus groups, and mock trials are all part of litigation defense. Finally, implement post-litigation risk management strategies to remedy the situation.
 
A comprehensive Compliance Program (also known as a Risk Management Program) focuses on early intervention through training, communication, and policy review. Monitoring and auditing are key elements to reduce medical liability exposure and improve patient safety.

David S. Barmak, Esq. received his JD from Cornell University and BA from Duke University. He is licensed to practice and serves clients in the States of New Jersey, New York, Connecticut and Pennsylvania. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision.

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Copyright, 2010.  Law Offices Of David S. Barmak, LLC.  All rights reserved.
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