Third Party Liability; Protecting your Staff
If one of your supervisors, managers or staff members harassed or abused another member of your staff you wouldn’t question your organization’s responsibility to address the problem, right? What about the same scenario but this time the harasser is not an employee, it’s one of your residents or patients. What is your responsibility? To what extent is your organization liable? Assisted living, residential, nursing home, and home healthcare staff are more likely than other types of employees to be exposed to harassment, discrimination and physical abuse by the very people they serve. In eldercare and healthcare the common perception by both employers and staff members has been “It’s just part of the job”. Not so, according to the Equal Employment Opportunity Commission (EEOC); that type of thinking can land organizations in very hot water and on the hook for thousands or even millions of dollars in third party liability suits.
Here is the deal: the EEOC states that The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action. An employer can avoid liability only if it can prove that:
- It reasonably tried to prevent and promptly correct the harassing behavior
- The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Check out Rosenbloom v. Senior Resource, Inc.
So what can you do to prevent, manage and correct instances of third party harassment in your organization? Here is what we recommend:
- Understand your responsibility: If you have been operating under the assumption this isn’t your problem it is time to come back down to Earth.
- Policy: Take a look at your organization’s anti-harassment policy, if it doesn’t include language about third party harassment now is the time to address that
- Reporting Procedure: The reporting procedure for this and any other type of harassment/discrimination should be spelled out in your policy. Will your staff know who to speak to if they have a complaint? Do they have several options including a male and female staff member?
- Training: If your supervisors or managers heard a staff member report a complaint would they know how to handle it? Improper complaint handling can open up a whole other can of worms
- Investigation Procedure: Know what your investigation procedure is before any complaints are made and follow that procedure consistently for each and every complaint
- Correction: If you find that harassment did occur decide how to eliminate or reduce the problem. This can include posting notices, working with the employee to change schedules, and removing the harasser from the facility
We have so much more to say on this subject. Feel free to contact me with questions and stay-tuned for more on this and other topics. Bkingsbury@clark-mortenson.com (877) 352-2121.