Preventing and Responding to Sexual Harassment

Protect yourself and your practice by creating an effective sexual harassment policy and by investigating incidents promptly.

T. Hensley Williams, JD, and Nancy M. Williams, JD

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The online version of this article incorporates material not included in the print version.

The number of sexual harassment claims filed with the Equal Employment Opportunity Commission (EEOC) is rapidly increasing. Since 1991, there has been nearly a 50 percent increase in the number of claims filed, bringing the total in 1998 to just over 15,500 claims. Claims like these aren't limited to the corporate world or to interactions between supervisors and their employees. Medical practices also need to be vigilant in preventing harassment of anyone who works there by anyone who works there.

According to the EEOC, sexual harassment consists of "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct" that can affect a person's employment or work performance and create a hostile work environment. Based on this definition, many things that may have been acceptable in the past could be considered harassment today. And sometimes the harassment isn't easy to spot. [See "Is this sexual harassment?" for some examples.]

Not just individuals at risk

For physicians in the role of employer, personally avoiding sexual harassment is not enough; they must ensure that the whole practice does, too. Two recent U.S. Supreme Court rulings have made it easier to sue an employer for sexual harassment when the employer isn't directly involved in the incident. In Faragher v City of Boca Raton, 118 S. Ct. 2275 (1998), and Burlington Industries v Ellerth, 118 S. Ct. 2257 (1998), the Supreme Court determined that employers are subject to "vicarious" liability for unlawful harassment by supervisors under certain circumstances.

On June 18, 1999, the EEOC issued guidelines that clarified vicarious employer liability for supervisory harassment. The guidelines state that employer liability will be determined by whether or not the harassment results in a tangible employment action, such as firing, hiring, failure to promote or demote, change in work assignment, change in compensation or benefits, etc.

KEY POINTS: Employers can now be held responsible for sexual harassment in their practice even if they knew nothing about it. Creating and implementing a sexual harassment policy in your practice can help you avoid liability. Investigations should include meeting with both parties, interviewing them and any witnesses, reporting findings and taking disciplinary action, if necessary.

If harassment results in a tangible employment action, the employer is automatically liable for a supervisor's actions. If harassment does not result in a tangible employment action, the employer must present affirmative defenses to avoid liability for the supervisor's actions. The employer must prove that it exercised reasonable care to prevent and correct promptly any harassment and that the employee unreasonably failed to take advantage of the employer's preventive or corrective opportunities or to otherwise avoid harm. The EEOC noted that there is no affirmative defense when the harasser is the president or owner of an organization.

The Supreme Court rulings and the EEOC guidelines make it clear that the best way to protect yourself and your practice is to institute a harassment approach that includes the following:

• A clear, detailed written policy that outlines your position against all types of harassment;
• Periodic management and employee training and programs that communicate the practice's position on this issue;
• A complaint procedure that encourages employees to come forward with any harassment complaints and assures confidentiality, and;
• An investigation strategy that assures immediate and appropriate preventive and corrective action and protects the privacy interests of the alleged victim and the accused offender.

High costs

Failing to follow the Supreme Court's and the EEOC's advice can be an expensive mistake. In one four-partner practice, a physician and a nurse were in a relationship, which the whole staff knew. But when the physician resisted the nurse's repeated attempts to end the relationship, it cost the practice dearly. To avoid going to court and having the physician's actions exposed, the practice agreed to a six-figure settlement -- substantially less than it might have paid had the case gone to trial.

A romantic relationship between an employer and an employee is risky in itself, and this one quickly moved into the sexual harassment arena when the physician ignored the nurse's wishes. In this case, the practice failed to avoid liability because it didn't take prompt corrective action against sexual harassment. The other physicians should have informed the harassing physician of the inappropriateness of his activity, asked him to stop and informed him of the possible consequences of his actions -- litigation, bad press for the practice, loss of goodwill, low employee morale leading to poor customer service, the possibility that the liability insurance carrier might not provide legal counsel to defend the suit, and the fact that he would be making not only himself but the entire practice liable. When advised of these consequences, many physicians will immediately put an end to the inappropriate activity.

Creating a sexual harassment policy

Of course, the best way to shield your practice from liability is to prevent harassment in the first place, as the Supreme Court rulings and the EEOC guidelines imply. You can do that by creating and enforcing a written policy against sexual harassment. [See some sample harassment policies.] An effective policy should do the following things:

• Define what constitutes sexual harassment. The definition should include physical, verbal and visual forms of sexual harassment. Remember that harassers and their victims can be of either gender and any sexual orientation.
• Encourage employees to come forward with complaints. The policy should assure employees that the practice will make every effort to preserve confidentiality while being fair to both parties.
• Provide alternative avenues for reporting harassment. Employees should not be required to report complaints to a particular individual or position.
• Stipulate that investigations of complaints will be prompt and that the practice will discipline offenders appropriately. However, the policy should not spell out what the appropriate action should be since it will depend on numerous factors, such as the harasser's overall performance record, his or her length of time with the practice, whether it is a first-time offense, whether there are mitigating circumstances, and the severity of the offense.
• Stipulate that the practice will not retaliate against complainants. Some examples of employer retaliation are firing or demoting an employee who complains of harassment, denying that employee a deserved promotion or raise, or hazing, ostracizing or criticizing the employee because of the complaint.

Is this sexual harassment? Sometimes it's difficult to tell whether certain situations are considered sexual harassment. Here are five examples you may encounter in your practice. Would you recognize these as incidents of sexual harassment? Female employees are laughing and joking at the water cooler as they discuss the sexual shortcomings of their male friends within earshot of one of the male employees. This may constitute a "hostile environment" for that male employee. In the same scenario, male employees are discussing the sexual shortcomings of their female friends within earshot of the male employee. This may also constitute a hostile environment if the male employee does not want to be confronted in the workplace with unwanted sexual conversations. A female employee has a lesbian roommate. Although the female employee is not gay, the physicians in the practice are constantly making jokes to the female employee about the sexual preferences of her roommate and intimating that the employee is also gay. This is "hazing." The actions of the physicians can be construed as harassment and intentional infliction of emotional stress. A young, attractive office worker has an affair with one of the older physicians in the practice. She is promoted to office manager over more experienced and qualified female employees. The more qualified employees could have a case of sexual harassment against the employer because they believe the physician and the office worker have a "quid pro quo" relationship. Arguably, sexual favors were traded for advancement in the workplace, and the other workers have been sexually harassed by these activities. An employee regularly uses the office computer to download pornographic movies. A coworker, who has to pass by this employee's desk to get to her own, can see the movies. The coworker complains to the office manager and the physicians, but they think it's funny, do nothing about the complaint and ostracize the complaining coworker. Again, this constitutes a hostile environment because viewing pornographic movies in the workplace is not an acceptable condition of employment. If the office were a pornographic store or movie house, the outcome would be different.

The policy should be printed in the employee handbook, posted around the office and distributed to every employee with an acknowledgment form that each must read and sign. In addition, to illustrate and explain the policy, your practice should conduct sexual harassment training for supervisors, managers and their subordinates. Practices can receive this type of training from attorneys or from workplace consultants.

Sample policies This material is not included in the print version of the article. For examples of sexual harassment policies that you can tailor to fit the needs of your practice, see the sample policy developed by the authors as well as a policy from a family practice.

Once you have a policy in place, you must follow it precisely for each complaint. Any deviation in application or enforcement of your policy may subject you to liability.

Handling an investigation

Although many employers do have written sexual harassment policies, they're often unprepared for an investigation when a complaint is made against people in their practices. Knowing how to conduct a thorough investigation will reduce your chances of being taken to court and increase your chances of winning if you are. A properly conducted investigation shows that your practice takes such charges seriously and will not tolerate any form of harassment.

When you conduct an investigation, protect the rights of the complainant as well as those of the alleged harasser, and (in fairness to both parties) proceed quickly. Although each investigation is unique, most charges can be investigated within 10 days.

The investigation itself should take place in four stages: Make an initial contact, conduct interviews, report findings and take disciplinary action if it's warranted.

Make the initial contact. Meet with the alleged harasser and tell him or her that a complaint has been filed. Emphasize that you're not making an accusation of any wrongdoing but that you feel an investigation is warranted. Tell the alleged harasser that all future discussions are confidential and not to contact the complainant until the investigation is completed. While it's important to let the alleged harasser know who made the complaint, it is equally as important to prevent him or her from retaliating against the complainant. Also, stress that failure to observe the rules may result in disciplinary action up to and including discharge from the practice.

Meet with the complainant and assure him or her that the investigation will be prompt and that the practice will take appropriate action if the investigation reveals that harassment did occur. Emphasize the need for confidentiality. Also, ask how the practice can help the complainant work comfortably during the investigation. Consider options such as providing paid administrative leave or changing working locations or hours for both parties.

Conduct interviews. It's best to have an objective party, such as a human resources representative or an outside consultant, conduct the investigation. Begin by interviewing the complainant and writing a detailed record of the charges, alleged specific incidents and whether there were witnesses or people who could offer corroboration. Ask how often the alleged conduct occurred, whether other employees complained of similar incidents, how the alleged conduct affected the complainant's work, and how much time elapsed between the conduct and the report. Try to find out whether the complainant has reason to lie (e.g., job-performance problems related to the accused or a past personal relationship with the accused).

When talking to witnesses, avoid leading questions such as, "Did you see Mr. Smith fondle the complainant?" Instead, ask whether they have seen anyone touch the complainant in a way that made him or her uncomfortable.

Finally, ask the accused whether he or she agrees with the statements you've collected and whether the accused can offer an explanation or motive for the allegations.

Report findings. Prepare a written report of the facts. The report should not include your opinions or conclusions. Brief top managers about these sensitive issues orally to avoid including them in a document that might be discoverable in litigation. It's best to leave top management out of the actual investigation as much as possible, especially if the alleged harasser is a manager. Sometimes management will try to "spin" the investigation's facts to create a more favorable conclusion. Instead, do not involve them until the facts are in place, they show that harassment has occurred and it is time to determine corrective action.

If the investigation doesn't produce sufficient evidence to support the claim, communicate that finding clearly to all parties.

Choose discipline that is proportional to the seriousness of the offense and the strength of the evidence.

Discipline the harasser. If the investigation shows that harassment did occur and that discipline is warranted, choose discipline that is proportional to the seriousness of the offense and the strength of the evidence. Sanctions can include anything from a written warning to demotion, suspension or discharge.

Before taking any action, meet with the harasser to describe what will happen and why. If the harassment wasn't aggravated (i.e., if it was a one-time request for sexual favors or a one-time joke rather than continuous, mean-spirited and threatening comments) treat the conduct as a job-related issue. While sexual harassment is always harassment, there are degrees of harassment, and the punishment should reflect this fact. Institute discipline and give the employee a chance to modify the inappropriate behavior. In addition, warn the harasser against any retaliatory behavior, closely monitor the harasser's conduct, and schedule more frequent performance reviews to document any improvement in or complaints about the harasser's behavior.

If the chosen discipline is termination, the reason for the termination should be performance problems, since sexual harassment is a performance-based issue. Employers don't usually give a public reason for an employee's termination, and there is no reason to treat this lack of performance differently from any others.

Review the outcome of the investigation with the complainant, and tell him or her whether, but not what, corrective action was taken. The complainant need only know that corrective action has been taken.

Finally, avoid discussing the matter in the workplace to reduce the possibility that the harasser will bring legal action against you for defamation, invasion of privacy or wrongful termination.

High costs all around

A potentially large judgment isn't the only cost of failing to prevent sexual harassment or of dealing with it poorly when it happens. If left unresolved and allowed to go to court, mishandled sexual harassment incidents can damage staff morale, harm your relations with patients and the general public, and cut into your practice's revenue.

Complaints of sexual harassment are emotionally charged and difficult for everyone involved. But by instituting effective policies and procedures, and by enforcing them consistently, you'll limit your practice's potential liability as well as protect the rights of all parties involved.

Ted and Nancy Williams are co-principals of The Williams Group, a Des Moines, Iowa-based human resources management consulting firm. Ted Williams is also a speaker on employee and labor-relations issues.

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Copyright © 1999 by the American Academy of Family Physicians.
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