Does my adult patient have a right to look at pornography?

[justalayman]

Stevef;3083727]I don't agree that mere exposure constitutes harassment. I believe something more is required.

Since nobody wants to believe me, I'll let the 11th circuit court of appeals speak for me. Take particular notice of the statement at the beginning of page numbered 3:

The district court found the pornographic pictures created a hostile environment under Title VII, 42, USC 2000 et seq. because they affected the men's behavior and required women workers to adopt various coping strategies.

http://www.legalmomentum.org/legal-knowledge/legal-cases/employment-cases/robinson-shipyards-bri.pdf



You do realize that overhearing dirty jokes not intended for the aggrieved party is sufficient to make a sexual harassment claim, right? Not only was the joke not directed to the aggrieved party but it was not intended for them to even hear it yet it is a valid claim for sexual harassment.

If the old coot is watching the porn on his laptop and continuously moves the screen so it is facing the nurse, that would constitute harassment. But if the old coot is simply watching, and not directing anything towards the nurse, I don't think that's harassment.

see the statement above

My opinion is that the offensive behavior must be directed at the employee to be considered harassment.

the courts have ruled, many times, the opposite. Overhearing sexual commentary has consistently been ruled unlawful harassment. Yes, the mere fact one is exposed to the unwelcome activity is considered to be illegal, even when not specifically directed to the aggrieved party.

 

[OHRoadwarrior]

I don't see why the computer/patient cannot be positioned in such a manner the nurses do not need to look at the screen. Put up a sign warning them to not look at the screen, while engaging the patient one on one.

 

[justalayman]

I don't see why the computer/patient cannot be positioned in such a manner the nurses do not need to look at the screen. Put up a sign warning them to not look at the screen, while engaging the patient one on one.

There really isn't such a position available. A nurse or other attendant could easily be in any area of the room. The only position that would allow this would be to close the monitor down on the body of the computer.

as to a sign; not acceptable. It isn't a matter of warning

If that was a possibility, can you imagine the warnings given to new employees:

warning; an employee is directed to not listen to dirty jokes and directed to not look at idiots grabbing their crotches and saying; hey, hows about youse and me playing hide the sausage behind the big stamping press; as the women walk by.

Just isn't going to work. You cannot remove the offense simply by saying; ignore it

 

[ecmst12]

So your solution is what? Tell the patient he can't engage in a legal activity in his own home? Allow a nurse to refuse to care for him because he sometimes engages in that activity? You are grossly oversimplifying a very complex issue and doing no service to anyone.

 

[justalayman]

So your solution is what? Tell the patient he can't engage in a legal activity in his own home? Allow a nurse to refuse to care for him because he sometimes engages in that activity? You are grossly oversimplifying a very complex issue and doing no service to anyone.

first, it is not his home. It is a room in a business that provides him services, including that room. He is subject to ejection from the home if he does not comply with rules imposed by the home. I have seen patients ejected for other violations. As I have said, if the home has rules that address this, then those need to be considered first. After that, it is up to the employer to remedy the situation. It could include not allowing him to view porn (he has no legal claim to being allowed and if you think that would be allowed in a home owned by any religious society, I think you would be mistaken) If he refuses to comply, his stay at the home could be in jeopardy. If there are other nurses that don't mind being exposed to the issue, then let them attend to him. If the employer can figure out some other remedy, then fine. The bottom line is; an employee cannot be require to be exposed to sexual harassment. They become liable for a failure to remedy the situation.

You are grossly oversimplifying a very complex issue and doing no service to anyone.

Oh, you mean like the nurses that do not want to be exposed to the porn? I see you would simply be willing to suck it up and go on. What is great about our country is; an employee does not have to and there are avenues to address it if the employer doesn't do something about it.

I don't know how you view porn but many people find it simply so vile and reprehensible that a forced exposure to such is simply an unconscionable act. As an employer, I could not even consider forcing a person that is repulsed by porn to be required to be exposed to it.

 

[Mass_Shyster]

OK, bear with me, because stoopid computer won't let me reply and quote, only reply to thread.

Direct toward JAL, I think the problem arises where one person's home is another person's workplace, and there is a clash of rights. I'm going under the assumption that this is a long term care facility, and the patient 'lives' there for at least some period of time.

The courts have held that people have a right to porn in their own home. Particularly, a prison was sued for withholding an inmate's porn. Inmate won, prison had to deliver his porn, and state had to pay his pro-bono lawyer.

In the case we're discussing, an agreement can certainly be put in place prohibiting patients from accessing porn while the nurse is in the patient's room, but as of now, that agreement does not seem to be in place. So if they tell old coot he cannot watch his porn, are they in breach of contract for adding more conditions to the contract than he originally agreed to.

I'll admit I haven't researched it (I should be working on a motion to suppress right now), but have the courts decided what happens when one person's privacy rights (I believe that is the where the right to view porn in one's own home came from) clashes with another's right to be free from harassment?

Or, what happens when an Alzheimer's patient sexually harasses the nurse?

It's a mind twister.

 

[justalayman]

Direct toward JAL, I think the problem arises where one person's home is another person's workplace, and there is a clash of rights. I'm going under the assumption that this is a long term care facility, and the patient 'lives' there for at least some period of time.

ok, can you support of the statement it is his home aka residence as opposed to a status as a patient or something similar. Of you can do that, this discussion can move on.

The courts have held that people have a right to porn in their own home. Particularly, a prison was sued for withholding an inmate's porn. Inmate won, prison had to deliver his porn, and state had to pay his pro-bono lawyer.

prisoners are not there based on a contract.

So if they tell old coot he cannot watch his porn, are they in breach of contract for adding more conditions to the contract than he originally agreed to.

One would have to address the contract, which none of us have. It might be something not allowed but then again, the contract also might allow for changes in rules. If nothing else, I suspect there is little preventing the contract from being terminated.

I'll admit I haven't researched it (I should be working on a motion to suppress right now), but have the courts decided what happens when one person's privacy rights (I believe that is the where the right to view porn in one's own home came from) clashes with another's right to be free from harassment?

Ah, but this is not a privacy issue. Once you exhibit yourself or your actions willingly to anybody that has a right to be where they are, you have given up your right to claim of invasion of privacy. Of course, that gets back to my statement; if he would turn it off while a nurse is in the room, it would remedy the situation as we have been presented. They would not be aware of his activity and as such, have no complaint. If they were not exposed to it, they surely couldn't attest he was viewing porn, now could they?

Or, what happens when an Alzheimer's patient sexually harasses the nurse?

the same thing as when somebody with Tourette's swears at a judge, if their Alzhiemer's is so bad that it is obviously beyond the control of the patient. An unintentional act is not harassment because, well, the actor is not actually doing what you think they are. It is simply an unconscious act.

 

[Mass_Shyster]

I'm not going to beat a dead horse, mostly because, given the OP's situation, I agree the nurse has a right to be protected from sexual harassment.

I do think it's interesting to think about other situations where the employee has a right to be free from harassment but the 'harasser' has an absolute right to do whatever it is that the employee rightly considers harassment.