Dive Brief:
- A long-term care facility in Vermont let White residents subject Black employees to ongoing racial slurs and racially motivated threats, in violation of Title VII of the Civil Rights Act of 1964, the U.S. Equal Employment Opportunity Commission alleged in a lawsuit filed Sept. 6 (EEOC v. 98 Starr Road Operating Co., LLC d/b/a Elderwood at Burlington, No. 22-00168 (D. Vt. Sept. 6, 2022)).
- One resident, a White male, was repeatedly abusive, the lawsuit alleged. In one alleged instance, he punched a Black nursing assistant while yelling racial epithets at her. Management tried unsuccessfully to transfer him to another facility but made no other effort to stop the racially hostile behavior, according to the complaint. Instead, Black nurses were allegedly told that it was “the resident’s right” to “say what they want.”
- Even “where harassers are patients or customers,” employers must take prompt and effectual remedial action to prevent racial harassment, EEOC Regional Attorney Jeffrey Burstein stated in an EEOC release. EEOC Acting Director Timothy Riera added that, “This harassment was especially grotesque, and should have been addressed quickly.” In an email to The Associated Press, Elderwood spokesperson Chuck Hayes said the company could not comment on ongoing legal matters but that, “all reports of inappropriate resident behavior are investigated and addressed. We will vigorously defend our efforts to protect our staff from racial harassment.”
Dive Insight:
Federal anti-discrimination laws prohibit employees from being subjected to a hostile work environment based on a protected class (e.g. race, sex, disability, religion). Even if the harasser isn’t an employee, employers can be held liable for allowing the offender to unlawfully harass staff, EEOC guidance states.
Further, the standard of liability is the same regardless of whether the hostile environment is caused by a co-worker, a customer or a resident in a care facility, EEOC’s Burstein told HR Dive. Once the employee knows or should have known of unlawful harassment, it must take prompt and effective action to remedy the harassment, he said.
“What the remedial action would be is fact-specific and can’t be answered with a broad brush,” Burstein added. Even after the alleged abuse had been going on for six months and a local newspaper published an article about it, the employer’s sole response was to meet with a state agency and increase its attempts to transfer the racially hostile resident, according to the complaint.
By comparison, in a case from Louisiana, the 5th U.S. Circuit Court of Appeals rejected the claim of a nurse that a patient had sexually and racially harassed her. The facility handbook warned employees that patients who are ill or suffering from diminished capacity may engage in inappropriate sexual conduct, the court noted. However, in the nurse’s case, although the harassment was offensive, it was neither severe nor pervasive, the 5th Circuit held. Rather, it consisted of two very brief instances of inappropriate conduct, the court said.
The EEOC has handled lawsuits in similar situations, Burstein pointed out. For example, in 2019, the owner and operator of methadone clinics in North Carolina agreed to pay $110,000 to settle EEOC allegations that clients repeatedly and openly subjected African American counselors to racial slurs, according to the EEOC’s E-Race Initiative.
The issue isn’t limited to care facilities. In 2007, a Pennsylvania hot dog franchise agreed to pay $7,500 to settle an EEOC lawsuit alleging that it ordered the store manager to fire African American employees because patrons didn’t like to be waited on by them, the E-Race Initiative notes.
As a best practice, the EEOC suggests employers make it clear that their anti-harassment policies apply to “employees at every level in the organization, as well as to applicants, clients, customers and other relevant individuals.” Employers may also want to provide examples of nonemployees covered by the policy, including individuals who interact with the organization in the daily course of doing business, the EEOC says.
