The complete “factual record” will prove that a Vermont nursing home did not create a hostile workplace by allowing physical and racial harassment of workers by patients, a facility spokesman said Wednesday.
A federal judge ruled Monday that Elderwood of Burlington must face an Equal Employment Opportunity Commission lawsuit. Plaintiffs allege management failed to take appropriate measures to stop physical assaults and racial slurs from residents toward Black staff members.
Judge Christina Reiss of the US District Court for the District of Vermont ruled that the facility can be held liable under Title VII for a hostile work environment if it is shown it did not take steps to remediate a resident’s behavior.
Chuck Hayes, a spokesman for Elderwood of Burlington, which is owned by 98 Starr Road Operating Co., said the company does not tolerate harassment of any kind, and “prides itself on promoting a culture of diversity and inclusion.”
“However, at this early stage of litigation without the factual record being developed and with every benefit being afforded a plaintiff by law at this juncture, denial of this type of motion is unfortunately fairly common,” Hayes said in an emailed statement to McKnight’s Long-Term Care News on Wednesday. “We firmly believe that discovery will clearly demonstrate that the facility took appropriate and prompt action in accordance with [Equal Employment Opportunity] laws and within the confines of very specific regulations, which govern long-term care facilities and cognitively impaired residents in those facilities.”
The judge’s motion denying Elderwood’s request to dismiss the case included references to progress notes about residents’ behavior and a news article from a Vermont publication. The EEOC said they prove the facility was aware of the hostile work environment. The commission also said managers “personally observed”inappropriate behavior.
“The Aggrieved Individuals allegedly documented their concerns in progress notes, which were routinely reviewed by management, and at least one Aggrieved Individual reported multiple complaints about race-based conduct through Defendant’s employee hotline,” the court filing stated.
A progress note about the resident who “physically assaulted/punched a staff member” noted that the resident “has probable Alzheimer’s and suffers from memory loss,” the judge’s ruling states.
“I’m not upset because this man did this. What upset me is that Elderwood failed to protect me and the other people of color. They failed to protect us,” one of the staff members who filed the original complaint is quoted as saying in an article from a Vermont news publication that wrote about the alleged incidents.
In a September McKnight’s article, legal experts said that nursing homes would draw attention from the EEOC not because of residents’ behavior but rather if staff management failed to stop harassment.
“It’s not a hostile work environment because you’re being called names. It’s a hostile work environment because you’re being called names and your employer isn’t doing anything about it,” said Norris Cunningham, a healthcare law expert quoted in the September article.
“(Facilities) are reflexively focused on trying to meet and respect residents’ rights and that includes the right to be a bigot. A person has every right to be a bigot,” Cunningham added. “What they don’t have a right to do is hurl racial insults at people who are doing their job, and an employer has a responsibility to minimize that and minimize the impact of that on their employees.”
