Sexual Harassment in Healthcare: Diagnosis, Treatment and Recovery

Given the current climate, it should come as no surprise that sexual harassment claims have exploded in the past year. According to the Equal Employment Opportunity Commission (EEOC), fiscal year 2018 saw a 12 percent increase in the number of sexual harassment charges filed – the first increase in five years.³ This has allowed the EEOC to recover nearly $70 million for victims of sexual harassment, another marked increase from fiscal year 2017, when the EEOC received more than $47.5 million.⁴

The healthcare industry is not immune to sexual harassment in the workplace. In fact, a recent study conducted by the Center for American Progress found that the healthcare industry ranks fourth in the number of sexual harassment claims that have been reported under Title VII of the Civil Rights Act of 1964 (Title VII).⁵ Another recent survey found that nearly 30 percent of female physician-scientists have experienced harassment in the academic medical setting.⁶

Although it is difficult to diagnose why healthcare is so high-risk, the hierarchical environment, the power imbalance and the preference for self-regulation are all likely explanations. Regardless of the cause, the symptoms are expensive. In fact, in one of the largest single-plaintiff sexual harassment verdicts in the country involves a physician assistant who sued the hospital where she used to work. The jury awarded her nearly $168 million in damages.⁷ A major verdict is not the only risk, however, and healthcare employers may also be vulnerable to intangible consequences, such as low morale among the workforce, a decline in patient confidence, and even safety issues that affect the quality of care provided.

So, what does this mean for the modern healthcare employer (and the lawyer who advises it)? While the concept of sexual harassment seems simple enough to understand, when viewed in the employment context, the legal landscape is varied and complex. This article explains how the law defines workplace sexual harassment and determines employer liability. It also provides guidance on how to create a culture where inappropriate conduct will not fester. If healthcare employers take a proactive approach now, they may avoid becoming a news headline in the future.

Examining the Legal Framework to Diagnose the Problem

Sexual harassment is a form of sex discrimination that violates Title VII, a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin and religion.⁸ Title VII recognizes two types of sexual harassment – quid pro quo and hostile work environment.

Quid pro quo is a Latin phrase that means “this for that.” Thus, quid pro quo harassment is when a person in a position of authority seeks sexual favors from an employee either by promising the favor will be returned with some type of job benefit (e.g., a promotion, a raise) or by threatening adverse action (e.g., a bad performance review) if the employee declines. This is arguably the most well-known type of harassment.

Hostile work environment harassment is unwelcome and offensive behavior that is so “severe or pervasive” that it alters the conditions of the victim’s employment and creates an abusive work environment.⁹ To be actionable, the conduct must be objectively and subjectively offensive. That means that both a “reasonable person” and the victim must find the behavior hostile or abusive.¹⁰ When determining whether an environment is sufficiently hostile, courts look at the totality of the circumstances, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”¹¹ The law is clear: “simple teasing, offhand comments and isolated incidents (unless extremely serious)” will not be actionable under Title VII.¹² To that end, courts frequently remind employees that Title VII is not a general civility code.

After the victim demonstrates that the misconduct is either severe or pervasive, he/she must then show that it was based on sex. This can be difficult to prove, and courts have held that, absent extrinsic evidence of sex discrimination, the alleged harasser’s words alone are insufficient to establish harassment. For example, one court found the “mere use of the word ‘bitch,’ without other evidence of sex discrimination, [was] not particularly probative of a general misogynist attitude.”¹³ In another case, a court found the use of the word “bitch” was not necessarily motivated by gender, as several possible motives explained the speaker’s reference to the employee as a “sick bitch.”¹⁴ These cases illustrate that the law effectively protects the “equal opportunity jerk.” Thus, when the inappropriate conduct is directed towards both sexes, or it is not clearly directed at either sex, it does not violate Title VII – no matter how distasteful it is.¹⁵ Again, Title VII is not a general civility code.

There is also a difference between co-worker and supervisor harassment. When the supervisor is the harasser, the employer is typically vicariously liable for that supervisor’s actions. However, if the harassment did not include a significant adverse employment action (e.g., termination), the employer may rely on the Faragher-Ellerth affirmative defense to avoid liability. This defense is available if the employer exercised reasonable care to prevent and promptly correct harassing behavior (e.g., had a policy and provided training to the workforce), and the employee unreasonably failed to take advantage of any preventive or corrective opportunities (e.g., failing to report the harassment pursuant to the policy) or to avoid harm otherwise.¹⁶  

When a co-worker or other non-supervisory individual (e.g., a patient, vendor, or non-supervisory member of the medical staff) is the harasser, the employer will be liable only if the employer knew or should have known of the harassment and failed to implement prompt and appropriate corrective measures.¹⁷ Therefore, if an employer promptly and appropriately responds to an employee’s complaint, there will be no viable cause of action under the law.

Although Title VII is the predominant vehicle to pursue a claim for sexual harassment, other options are also available. For instance, Title IX of the Education Amendments of 1972 protects people from discrimination based on sex in educational programs or activities. Like Title VII, Title IX prohibits hostile environment and quid pro quo harassment. Although Title IX typically applies to educational institutions, healthcare providers that receive federal assistance for educational purposes, such as teaching hospitals, will be subject to the law. Whether that permits employees to bring a sexual harassment claim under Title IX is less clear, as some courts have permitted claims to proceed while others have held that Title VII is the exclusive remedy. Since a federal appeals court recently concluded that individuals alleging sex discrimination in medical residency programs can bring Title IX claims,¹⁸ and because a violation of Title IX can jeopardize federal funding, Title IX should be on the radar of every healthcare employer covered by the law.

Victims of sexual harassment may also look to state civil rights law. Typically these laws parallel Title VII, but may alter the legal framework to make pursuing claims easier or to expand the damages available. Unlike Title VII, state law can also pave the way for a victim to pursue a claim against the alleged harasser individually.¹⁹ Victims can pursue tort claims such as intentional infliction of emotional distress, invasion of privacy, assault, or defamation against the harasser in the same lawsuit that sets forth a Title VII claim against the employer.

Developing a Treatment Plan

So, how can attorneys counsel their healthcare clients so they avoid becoming the next news headline?²⁰ This four-step treatment plan will help.

Step One: Ensure that the Client’s Policy Matches Modern Standards

Healthcare employers must have a strong and effective anti-harassment policy. If they do not, they should get one – immediately. If the employer has a policy but it has not been updated in several years, then it is likely behind the curve. With the spotlight on sexual harassment in the workplace, employers are under more pressure to address sexual harassment in a realistic and thoughtful manner. To do this, any anti-harassment policy should include a number of substantive points.

First, the policy should (1) make it clear that the employer has a zero tolerance policy for harassment  by anyone (not just employees) and (2) include unambiguous guidelines about what constitutes prohibited conduct. While this can be achieved in various ways, including examples of violative behavior is a healthy approach. For instance, the policy could feature examples of offensive and inappropriate conduct or behavior, such as:

• Offensive advances, jokes, remarks or requests for sexual favors (regardless of the gender of the individuals involved).
• Offensive statements or acts that are of a sexual nature, or the display of sexually suggestive objects or pictures.
• Offensive, unnecessary or unwelcome physical conduct, including touching and gestures, regardless of the gender of the individuals involved.
• Unwelcome conversations, advances, flirtations or propositions, subtle or explicit pressure or requests for sexual activities, sexually degrading words or statements used to describe a person or his/her gender, or gender or sexual stereotypes.
• Suggestions that a personal or sexual relationship by and with a member of management will result in employment or advancement within the organization or that an employee’s refusal to submit to sexual advances will impact any terms or conditions of employment.

Next, the policy should encourage all employees – not just victims – to report any concerns about potential harassment immediately, and should identify multiple avenues that employees can use. Because an employee’s immediate supervisor might be the one engaging in the inappropriate conduct, the policy should not require employees to report harassment directly to the immediate supervisor. Going further, employers should consider the feasibility of implementing a 24-hour hotline or intranet reporting mechanism that allows remote reporting and/or anonymous reporting. In order to encourage reporting and minimize liability, alternative reporting mechanisms are critical.

Finally, the policy should explicitly state that there will be no retaliation against any person who reports harassment or assists in any investigation regarding harassment. Sexual harassment victims regularly cite fear of retaliation as the number one reason why they failed to bring a complaint forward. Thus, if the employer genuinely wants to foster an open and respectful atmosphere, and it should, then guaranteeing a retaliation-free environment is non-negotiable.

Step Two: Disseminate and Educate

A strong and effective anti-harassment policy is worthless if it sits on a shelf. Therefore, employers should thoughtfully disseminate the policy in order for it to be effective. Counsel can suggest that employers engage in the common practice of distributing the policy at orientation, and requiring each person to acknowledge receipt. While that is a good start, the employers’ efforts cannot stop there. The person who leads orientation should speak in detail about the policy, explain where it can be found, and emphasize the employer’s zero tolerance philosophy as a way to keep the ball rolling. From there, employers should periodically provide copies of the policy as a stand-alone document to the entire workforce to remind everyone of their rights and responsibilities. And, if employers wish to take their efforts one step further, one of the highest-level officials – if not the highest-level executive – can distribute the policy from his/her email account or via signed memorandum. This will set the tone from the top of the organization that this subject matter is taken seriously.

Even though employers do not normally ask non-employees to acknowledge anti-harassment policies, employer clients should still be encouraged to communicate their zero tolerance standard to these individuals. For instance, employers can include zero tolerance language in scope of work agreements with vendors. Employers can partner with the peer review committee (where applicable) to include zero tolerance language in the medical staff bylaws. Employers can also include zero tolerance language in a patient bill of rights (or similar documents). Ultimately, however, employers are not required to take these steps before responding to complaints of harassment concerning non-employees.

Even if the employer distributes the policy in multiple ways, simply providing a copy of the policy is not enough. Employers must also train employees on the policy, which is often done with the assistance of legal counsel. Training those in positions of power and/or with decision-making authority is an especially critical step, since employers may be liable for their misconduct. Additionally, these individuals should be trained to spot possible instances of harassment more effectively, and how to appropriately handle an issue when it arises.

Step Three: Investigate and Respond Appropriately

Once employers receive a sexual harassment complaint, they need to take immediate action. If an investigation is delayed until work slows down or until an important project is completed, it will send a signal to the workforce that these issues are not a priority. While there is no one-size-fits-all approach to workplace investigations, a reasonable investigation typically includes certain elements.

Most importantly, every complaint must be taken seriously. This means that, at least most of the time, human resources should begin an investigation by speaking to and obtaining a written statement from the victim. This will help crystalize the issues and avoid confusion down the line. However, the victim should not be told that a written complaint is required before an investigation will occur, and employers should not delay the investigation until a written statement can be obtained. At the start of an investigation, human resources should also collect statements from the accused and any witnesses, as well as any relevant documents (e.g., text messages, emails and other electronic communications). If there is no human resources department or personnel, an appropriate person should be designated to lead the investigation. For instance, the office manager or another employee with an appropriate degree of authority (although not the employee against whom the complaint has been made) would be an adequate substitute. Counsel can also advise the client to designate a third party to assist with the investigation. Just be mindful that if the third party is an attorney, his or her involvement in the investigation may jeopardize any attorney-client privilege, particularly if he or she prepares a memo, formal findings, or other documentation regarding the investigation, as that documentation may be discoverable.

During the course of the investigation, interviews, the review of evidence and other investigative steps should be documented through memoranda and/or notes. This will help keep the investigation organized. Moreover, if a lawsuit is ever filed, these documents will also demonstrate that the matter was taken seriously. Regardless of their purposes, the investigation documents should be free of conclusions and opinions.

While the investigation is underway, it can be difficult for the victim if he or she is forced to work alongside the alleged harasser. When possible – even if it might be inconvenient – the alleged harasser should be placed in another work area pending the completion of the investigation. If not, he or she should be suspended. How the employer protects the victim when the alleged harasser is a member of the medical staff, vendor, or patient will depend on the facts and circumstances.²¹

Finally, older complaints should not be ignored. For example, during interviews, a witness might describe obscene behavior from more than a year ago. Just because the report is not about recent conduct does not mean it is irrelevant. The degree of relevance will depend on the specific facts and circumstances.

Step Four: Consistently Enforce the Policy

Even with the most diligent investigation, it may be impossible to conclude with absolute certainty that a policy violation occurred. But, when there is a good faith and reasonable belief that the allegations have been substantiated, immediate corrective action must be taken. If the employer fails to do so, it will increase legal risk and decrease morale.

The employer’s decision should correspond with its overarching goal to take sufficient action to ensure that the behavior is not reasonably likely to occur again. This can be difficult to achieve, however, especially when the alleged harasser is a high-performing practitioner or a high-ranking executive. So, how should the employer proceed? Depending on the severity of the circumstances, it could terminate the harasser. For situations involving only mild misconduct, it may be sufficient to issue written discipline. Of course, there is a wide selection of disciplinary choices between these two, and employers should keep in mind that they may need to consult medical staff bylaws or report the misconduct to the National Practitioner Data Bank (NPDB) and/or state law equivalent.²² In the case of a vendor or patient, the healthcare provider has other options, similar to the options available while an investigation takes place. Given the wide range of possible options, it is helpful (if not necessary) for legal counsel to be involved in the decision-making process. 

Regardless of the decision, the course of action taken should be documented. The person leading the investigation should also notify the victim that the investigation is complete, and remind him or her that retaliation will not be tolerated. This is especially important if the alleged harasser is not terminated.

The Prognosis Is Good, But There Is No Guarantee of a Cure

While the law is complex when it comes to workplace sexual harassment allegations, one thing is clear: The “boys will be boys” mentality of generations past can no longer justify bad behavior. The growing voice of the #MeToo movement and the focused media attention on these issues have already prompted the EEOC (and the plaintiffs’ bar) to pay special attention to sexual harassment claims. Inevitably, this will prompt courts to examine employers’ decisions, policies and investigations with heightened scrutiny. The time is now to advise one’s employer clients to take affirmative steps to create a culture that does not tolerate inappropriate behavior. 

1. Brian Stelter, The Weinstein Effect: Harvey Weinstein scandal sparks movements in Hollywood and beyond, Oct. 20, 2017, https://money.cnn.com/2017/10/20/media/weinstein-effect-harvey-weinstein/index.html.
2.  Alex Langone, #MeToo and Time’s Up Founders Explain the Difference Between the 2 Movements – And How They’re Alike, Mar. 8, 2018, http://time.com/5189945/whats-the-difference-between-the-metoo-and-times-up-movements/; see also Sophie Gilbert, The Movement of #MeToo, Oct. 16, 2017, https://www.theatlantic.com/entertainment/archive/2017/10/the-movement-of-metoo/542979/.
3.  U.S. Equal Employment Opportunity Commission, EEOC Releases Preliminary FY 2018 Sexual Harassment Data, Oct. 4, 2018, https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm.
4.  Id.
5.  Center for American Progress, Not Just the Rich and Famous, Nov. 20, 2017, https://www.americanprogress.org/issues/women/news/2017/11/20/443139/not-just-rich-famous/. The top three are the accommodation and food services, retail trade, and manufacturing industries.
6.  Jagsi R, Griffith KA, Jones R, et al., Sexual Harassment and Discrimination Experiences of Academic Medical Faculty, JAMA 2016;315(19):2120-2121.
7.  Chopourian v. Catholic Healthcare W., No. CIV. S-09-2972 KJM, 2012 WL 4115006 (E.D. Cal. Feb. 6, 2012). It is hard to say why this jury decided to make such a large award. One can speculate that the fact that the plaintiff was a high wage earner (her back lost wages totaled $549,360.00 and her future lost wages totaled $3,181,128.00) and the fact that the defendant failed to properly address the misconduct despite the plaintiff’s repeated complaints played significant roles.
8.  42 U.S. Code § 2000e, et. seq.
9.  Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
10.  Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)).
11.  Id. at 23.
12.  Faragher, 24 U.S. at 788.
13.  Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000).
14.  Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167-68, 70) (7th Cir. 1996).
15.  Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000).
16.  Faragher, 524 U.S. at 807; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). From these companion cases, the Faragher-Ellerth affirmative defense was born. Both cases involved supervisory employees who created hostile work environments for subordinate employees.
17.  29 C.F.R. § 1604.11(d) and (e).
18.  See Doe v. Mercy Catholic Medical Center, 850 F.3d 545 (3d Cir. 2017).
19.  For instance, in Mississippi the plaintiffs’ bar regularly includes an “intentional interference with employment” cause of action against the alleged harasser in sexual harassment claims. Other state laws, such as New York State’s Human Rights Law, make individual defendants personally liable under certain circumstances.
20.  See e.g., Julia Moskin, Mario Batali Exits His Restaurants, Mar. 6, 2019, https://www.nytimes.com/2019/03/06/dining/mario-batali-bastianich-restaurants.html; see also Emily Steel, Fox Faces New Lawsuit Claiming Harassment by Roger Ailes, Dec. 13, 2016, https://www.nytimes.com/2016/12/13/business/fox-faces-new-lawsuit-claiming-harassment-by-roger-ailes.html.
21.  For instance, the employer may be required to notify the peer review committee of the complaint or otherwise comply with the medical staff bylaws. Vendors may need to be restricted totally or partially from the property. Patients present unique challenges, as the healthcare employer’s obligation to provide quality care continues. Accordingly, it may be necessary to discharge or transfer the patient under certain circumstances.
22.  E.g., the Medical Board of California. Congress created the NPDB in 1986 to collect information about healthcare providers (e.g., physicians, practitioners, entities, etc.) in an effort to improve healthcare quality, protect the public, and reduce fraud. Certain actions must be reported to the NPDB. For instance, hospitals must report certain peer review actions that adversely affect clinical privileges for a period longer than 30 days, and peer review organizations must report negative actions or findings. For more information about the NPDB, visit https://www.npdb.hrsa.gov/.