Don't close your eyes to workplace harassment: how to avoid yet another liability exposure (not to mention staff discouragement) that your facility doesn't need. (Feature Article).

In recent years, the employment law spotlight has directed its beam on harassment in the workplace. Virtually every type of workplace and every industry has had its share of harassment complaints, and nursing homes have been no exception.

In many respects, nursing homes are particularly susceptible to such claims; problems such as verbal altercations relating to racial and ethnic discrimination and inappropriate hugging, touching, and other forms of sexual harassment often seem to dominate the claims. The nursing home is a dynamic environment:

A broad range of employees, service providers, residents, and family members are constantly present. Staff works long and often late hours, providing services of a private and sensitive nature in an atmosphere that can be "informal" or "homey." The issues and potential problems raised by harassment in the nursing home environment are compounded by the fact that many nursing home administrators and managers feel overworked and underpaid, and lack the time and visible support necessary to address such issues. Most administrators, however, do recognize that problems exist or that additional work is necessary to bring their workplaces in compliance with existing law.

There are urgent reasons for harassment issues to be addressed. The newspapers are rife with reports of workplace harassment. Courts and federal and state agencies (the U.S. Equal Employment Opportunity Commission [EEOC] among them) have become active in snaring employers who have not taken the necessary steps to protect themselves and to eliminate (or at least minimize) harassment in the workplace. In fact, the EEOC Web site (www.eeoc.gov) indicates a 4.5% national increase in discrimination claims of all types in the last year.

Moreover, the stakes have become painfully high. Potential damages from a single harassment claim easily reach into the hundreds of thousands of dollars and can run even higher in states without liability caps. These costs become even greater when one considers that with every charge or suit that is filed, administrators, managers, nurses, and other employees may face hours of depositions, interviews, and endless other litigation tasks that detract from providing quality resident care. With nursing home profit margins shrinking steadily--or dipping further into negative numbers-- there is simply no room in the operating budget to risk such liability. Administrators can no longer afford to ignore their obligations and hope for the best.

Fortunately, the courts have provided a relatively clear road map for employers seeking to avoid harassment liability under federal law--a road map that, upon reflection, is not as difficult to implement as one might think. Basically, the courts have said that an employer can avoid or drastically reduce the specter of harassment liability by taking tangible steps to enact and enforce an effective program against harassment. Such a program, when properly followed, will serve both to prevent harassment in the workplace and, should it occur, to provide a significant defense to liability in many instances.

As is often the case, the most difficult aspect of taking advantage of this opportunity is to actually take action. The steps are not difficult; they do take some time, planning, and resources, but not nearly as much as might be required if the facility permits harassment to continue.

What, then, must an administrator do to design and implement an effective program against harassment? The essential steps are:

Step 1. Adopt a comprehensive policy against harassment. This should be written in easily understood language that clearly defines prohibited conduct and provides, at a minimum:

* a definition that includes sexual harassment and harassment based on race, national origin, ethnicity, gender, age, disability, or any other personal characteristic protected by applicable federal, state, or local law, and applies to anyone who enters the workplace;

* examples of seemingly innocuous but prohibited conduct, such as crude jokes, gestures, slurs, innuendo, and other similar behavior;

* specified and mandatory procedures for reporting harassment, including multiple, clearly defined reporting routes;

* a guarantee of a prompt, thorough, and impartial investigation of each complaint;

* assurance that the complaint will be treated as confidentially as possible, noting, however, that some disclosure may be necessary to fully investigate and remedy the complaint;

* assurance of prompt and effective remedial action for any policy violations, including potential discipline up to and including termination;

* assurance that anyone who complains or serves as a witness or participant in an investigation will be protected from retaliation; and

* a process that sanctions retaliation with disciplinary action up to and including termination.

Step 2. Effectively communicate the policy and republish it at least annually. The policy should be included in all handbooks, posted on bulletin boards, available for pickup in a discreet location, highlighted during orientation, and discussed at staff and management meetings periodically.

Step 3. Educate employees and management of all levels on the policy. Use a program and format that:

* get the audience involved and make the experience memorable;

* are tailored to fit the particular workplace and its intended audience;

* are mandatory;

* involve and reflect the involvement and commitment of senior staff members;

* thoroughly review the policy, leaving no doubt as to what the policy prohibits, what it requires in terms of abstinence and reporting, and where such information can be found;

* educate as to what harassment is, including the broad array of classes protected and conduct prohibited;

* emphasize that the policy applies to everyone in the workplace, regardless of position or status;

* review the nursing home's obligations to investigate and remedy complaints;

* explain that confidentiality is not guaranteed, but will be provided to the greatest extent possible, while balancing the need to conduct a meaningful investigation;

* alleviate fears of retaliation should. a good-faith report be made;

* reiterate the nursing home's commitment to "zero tolerance" in regard to unlawful harassment; and

* are recorded by employee-signed acknowledgment forms.

Step 4. Conduct separate supervisory training to focus on supervisors' unique duties and responsibility to know, understand, apply, and enforce the policy. This is preferably done by the nursing home's attorney, although human resources or other training professionals might be involved.

Step 5. Train any individuals who will be involved in investigating incidents of workplace harassment Because such investigations are critical to defending against ensuing litigation, the individuals who conduct the investigations should have specific training in conducting an investigation, handling witnesses, and perhaps most importantly, documenting and concluding the investigation. Again, the nursing home's attorney is a good resource.

Step 6. Review and reinforce each supervisor's knowledge of the policy, for example, by including it in annual reviews and staff discussions. Actively solicit feedback on which aspects of the program are working and which could be improved. Find out whether supervisors are comfortable with the program. and, if not, what might be done to increase their comfort levels and to help them in their roles as enforcers.

Step 7. Be a good role model. An effective harassment program begins and ends with an administrator who is willing to take action when harassment is witnessed or reported. It amounts to cleaning up the workplace one offense at a time and being a person that employees can trust with such complaints.

Step 8. Include a line item relating to harassment considerations and concerns on all background and reference checks. Many former employers are reluctant to give this information, but asking may result in valuable information. The simple fact of the inquiry should be documented, in any event.

Step 9. Maintain a central repository of confidential files relating to harassment complaints and investigations. Information about an employee's past issues and problems should be reviewed each time a new complaint is filed.

Step 10. Audit all related policies to ensure that the antiharassment message is consistent. Prohibitions against harassment should be included, for example, in e-mail and communications policies, Internet usage policies, workplace decorum policies, gift policies, and similar policies. Also consider implementing a policy regulating or prohibiting supervisor-subordinate dating, if such relationships are prevalent in the workplace or pose particular problems.

This 10-step approach might seem extensive, but it is workable if taken one step at a time. Moreover, compliance can reap rewards by reducing potential harassment liability, as well as by fostering a more productive and comfortable working environment.

In sum, the looming danger of seemingly inevitable harassment liability can be controlled. It need not dominate or debilitate the workplace. With the guidance provided by the courts, there are dear and easy steps that can--and must--be taken to dismantle the danger. Taking the first step will put your nursing home on the road to a harassment-free environment.

Representing healthcare providers in Labor and employment matters, Howard L. Bernstein is a cochair and Victoria L. Donati is a partner of the Labor and employment group of Neal, Gerber & Eisenberg, a Chicago-based law firm. For further information, phone [phone] or visit www.ngelaw.com. To comment on this article, please send e-mail to [e-mail]