There's a lot of discussion these days about protecting physicians from malpractice lawsuits. But another, less publicized threat is potential sexual harassment claims from employees or patients. Like all workplaces in the last decade, medical offices have experienced an increase in the number of claims filed for sexual harassment.
An airtight policy can help shield you and your practice from big-dollar awards that leave a cloud over your reputation.
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Hospital Sued Over Doctor's Behavior The EEOC settled a sexual harassment case for $5.425 million on behalf of a class of female workers at Lutheran Medical Center, a hospital based in Brooklyn, N.Y. In the 2003 lawsuit, EEOC alleged that Dr. Conrado Ponio, during his employment at Lutheran, abused his authority by sexually harassing female employees when conducting employment-related medical examinations. The EEOC alleged that Lutheran knew, or should have known, of the sexual harassment and failed to take adequate measures to prevent the behavior. (EEOC v. Lutheran Medical Center, No. 01-5494, EDNY) |
The best defense is a good offense, so it's a good idea to review the type of behavior that can trigger sexual harassment claims. The U.S. Supreme Court has recognized two:
- Quid pro quo harassment, where a supervisor demands sexual favors from an employee in exchange for job security or advancement.
- Hostile work environment harassment, where employees are subjected to offensive and degrading comments, actions or symbols of a sexual nature.
The Supreme Court has handed down decisions that increasingly broaden the scope of liability. The justices ruled in 1998 that an employer is responsible for the actions of supervisors even when the employer is unaware of their behavior. (Faragher v. City of Boca Raton, and Burlington Industries v. Ellreth)
Your defense in these matters is to take "reasonable care" to prevent and correct any sexually harassing behavior and show that complaining employees didn't take advantage of remedies your practice provides.
To shield yourself against harassment suits, you need to outline unacceptable behavior in an unambiguous and specific policy, which can be part of your practice's employee manual or handbook. Make all employees read and sign a copy of the policy to show they understand the requirements and the consequences of violations.
Among the elements to include in your policy are:
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- Employees must immediately report any sexual harassment. Reports can be made individually to supervisors or through an anonymous complaint box or computer file. Reassure employees there will be no retaliation for filing complaints. Even in situations where sexual harassment claims have been rejected, juries have awarded multi-million-dollar verdicts to employees who were retaliated against for highlighting potential harassment issues.
- Prohibit jokes about human body parts or conditions. Innocent or humorously intended comments can wind up being the basis of a hostile work environment claim. This includes jokes and pictures sent by email.
- Require an investigation of all complaints immediately. Keep copies of all complaints, investigation reports and disciplinary measures to document the practice's efforts to deal with harassment problems. These steps show the practice's "reasonable care" in dealing with sexual harassment issues.
But medical-office staff isn't the only source of sexual harassment claims. You must also have policies that protect you in patient-contact situations. Consider:
- Having another person in the room — generally a nurse — when you conduct examinations. The nurse's gender should mirror the patient's gender.
- Note the name of the nurse or witness on the chart so the information is available if a sexual harassment suit is filed in the future.
Investing a little time, money and forethought can protect a medical practice from being beleaguered by sexual harassment claims.