34 AHLA Connections July 2018

Sex Harassment in Health Care in the Wake of the Renewed #MeToo Movement and #TimesUpBy Tiffany Buckley-Norwood, Jackson Lewis PC

It has been 32 years since the U.S. Supreme Court first held in Meritor Savings Bank v. Vinson1 that sex harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).2 It has been 20 years since the U.S. Supreme Court clarified in Faragher v. City of Boca Raton3 and Burlington Industries, Inc. v. Ellerth4 when an employer may be liable for sex harassment by supervisory employees. Despite this passage of time, the number of claims of discrimination filed with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with investigating claims of harassment in employment, has remained relatively steady—averaging 12,514 sex harassment claims filed nationwide each year.5

What has changed is the public manner in which individ-uals are making their claims known, the types of sex harass-ment claims being made, the public relations impact of sex harassment claims, and the health care industry’s level of expo-sure. Indeed, one of the largest, publicized jury verdicts ($168 million) for sex harassment arose out of a 2012 lawsuit filed by a female physician against the hospital for which she worked.6

In 2017, health care surpassed manufacturing and retail to become the largest source of jobs in the United States (the first time in history),7 with physicians comprising a greater portion of the employed health care workforce than ever before.8 The increase in employee volume comes with an increased risk of

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claims. In a comparison of total sex harassment complaints filed with the EEOC by industry in fiscal years 2005–2015, health care was the top fourth, following food service, retail, and manufacturing.9 In fiscal year 2016, the percentage of sex-based discrimination complaints (including harassment) to the EEOC coming out of the health care industry rose and topped the list, followed by manufacturing and retail.10

Health care employers are uniquely at risk of sex harass-ment claims and the ramifications are greater because of a number of factors, including: (a) the large number of highly trained, professional employees in non-traditional supervisory and other positions of influence; (b) the higher percentage of intimate situations that occur behind closed doors; (c) uniquely stressful work environments; and (d) the inherently personal nature of health care services and the level of trust involved. However, the increased media attention presents a unique opportunity to take meaningful action now that can lower the risk of sex harassment and other claims.

This article discusses the legal framework that typically surrounds claims of sex harassment, how this area of law has been affected by recent media attention, and guidance for health care employers on how to address the current climate.

The Legal Framework for ClaimsAs of 1986, with Meritor, sex harassment is a form of sex discrimination and covered by Title VII.11 Title VII only applies to organizations with 15 or more employees, but state civil rights laws similar to Title VII may have lower employee thresholds. For example, Alaska, Hawaii, Michigan, and Oregon, among others, have an employee threshold of one employee.12 Notably, while Title VII does not create liability for individuals, certain state laws do.

Title VII and companion state laws do not prohibit all conduct of a sexual nature, although the conduct may be inappropriate for other reasons, and their protections are not limited solely to conduct of a sexual nature. For example, conduct that occurs because an individual does not conform to certain sexual stereotypes is still sex harassment. These laws prohibit any unwelcome conduct that is based on sex and is so frequent or severe that it creates a hostile or offensive work environment or that conditions some aspect of employment on submission to sexual advances or sexual favors (quid pro quo). Harassing conduct can include unwelcome sexual advances and requests for sexual favors, and inappropriate verbal communi-cations, physical interactions, or pictures. Unlawful sex harass-ment can come from a supervisor, coworker, patient, visitor, or even an outside vendor. The harasser also can be of the same or different sex than the individual being harassed.

The employer may be automatically liable if the employee suffered an adverse employment action (i.e., loss of a job, promo-tion, or benefit) at the hands of a supervisor-harasser. However, the employer is only liable for harassment by a coworker or third-party (such as a patient or vendor) if it (1) failed to provide a reasonable avenue of complaint, and (2) it knew, or in the exer-cise of reasonable care should have known, about the harass-ment, yet failed to take appropriate remedial action.

In addition to Title VII and state civil rights laws, employers must be cognizant of intentional torts, such as intentional infliction of emotional distress, negligent retention or super-vision, invasion of privacy, defamation, and civil assault and battery that can be based on the unwelcomed conduct. In an appropriate case, a review of the facts also may result in the seeking of criminal penalties. As demonstrated by recent, high-profile practitioner-patient assault cases, the law also protects non-employees.

Transition from #MeToo to #TimesUp“Me Too” is not a new phrase. It was coined by Tarana Burke in 2006.13 Social media and the widespread national press atten-tion have made it easier to find commonalities in stories and inspired more collective action, however, such as the creation of #TimesUp. In this vein, TIME Magazine’s 2017 Person of the Year cover featured “The Silence Breakers”—“the thousands of people across the world who have come forward with their experiences of sex harassment and assault”—and showed an anonymous arm cropped at the shoulder. That arm belongs to a young hospital worker from Texas who feared disclosing her identity would negatively affect her family.14 However, many other health care employees have come forward in recent years to publicly tell their stories. Those public stories have changed recently from relatively subtle acts of harassment to overt sexual advances and assaults.

For example, on January 2, 2018, The Boston Globe reported on three men’s detailed account of improper sexual interactions

Steps to lower the risk of sex harassment complaints start with creating an anti- harassment culture that flows from the executive levels of the organization down.

36 AHLA Connections July 2018

with a male physician who was also part of a medical school’s faculty.15 The interactions occurred approximately 25 years ago and the men said nothing to the alleged harasser or anyone else at the time. The national furor over sex harassment prompted them to report the incidents to The Boston Globe. One said the accused made a pass at him when he was a graduate student in public health. The second said the accused rubbed his leg, during a presentation, when he was a new physician in training under the accused’s supervision. He stated that he did not say anything at the time because he was worried a complaint might derail his career. The third was a patient. He said the accused initiated sex with him and he consented to sex. He also said he continued treatment with the accused for eight years, because of the accused’s revered status as a physician in the gay community.

The Boston Globe’s January article followed its December 8, 2017 article detailing prior complaints that the accused made unwanted sexual advances on at least three other male coworkers and bullied male and female employees for four years (2013–2016) by yelling and belittling them.16 Some of these allegations were twice investigated by a law firm, which led to a $75,000 settlement with one male employee, harassment training across the organization, and a month-long leave of absence for the accused. The investigation also resulted in a recommendation back in 2015 that the accused be discharged from his medical center position, but he was allegedly “too important to fire” at the time. By January 12, 2018, after the first two Boston Globe articles and a reference in a third, the accused resigned from his posi-tions.17 The Chief Executive Officer and Chairman of the medical center in which he worked also resigned.

At least three lessons are illustrated here. First, the EEOC’s recent study of harassment in the workforce found that three out of four individuals who experienced harassment never talked to a supervisor, manager, or union representative about the conduct.18 As illustrated by the above, the current media focus on sex harassment will likely bring out more stale claims. Second, it is important to promptly investigate any complaints of sex harassment and take appropriate action, even if it means discharging a valuable member of the organization. Third, sex harassment claims can negatively affect individuals other than the harasser and individual making the complaint.

Guidance for Health Care EmployersSex harassment claims not only create emotional harm for the individuals involved, they can damage the employer’s reputation, limit the institution’s ability to attract the best and brightest talent, cost the organization millions in lost productivity and employee turnover, and embroil the organization in time-con-suming litigation for years. Patient care also is at risk. If a nurse is being treated inappropriately by a physician, the nurse may avoid communicating or working with the physician altogether, which may affect any patients they are treating jointly.

Create Anti-Harassment Culture That Starts at the Top and Flows Through the OrganizationSteps to lower the risk of sex harassment complaints start with creating an anti-harassment culture that flows from the execu-tive levels of the organization down. It should be clear from the top of the organization that employees should report any inci-dents of inappropriate conduct they see or experience, that any such reports will be appropriately addressed, and that individ-uals who make a complaint in good faith will be protected from retaliation. There also should be a strong partnership between individuals responsible for operational, legal, compliance, public relations, and human resource functions to reinforce the anti-harassment culture. Hospital leadership should be visible and engaged with employees to reinforce that culture.

An effective anti-harassment culture will sometimes address issues before they rise to the level of harassment. For example, “red flags” regarding a physician’s conduct, even gossip, should not be ignored. If the organization has an effective, anti-ha-rassment culture, a leader hearing that gossip will obtain more information to address the issue directly or escalate it to human resources for investigation. Further, the employees that receive such gossip will feel more comfortable with escalating the issue themselves, rather than remaining silent.

Implement Effective Training and Employment PoliciesLike courts, employees sometimes struggle with conduct that falls within the gray area. Employee handbooks and policies should go beyond prohibiting sex harassment as defined by the law. They should specifically prohibit intimidating, bullying, and abusive conduct. Care should be taken in crafting such language, however, because if it is too vague or overbroad it may run afoul of the National Labor Relations Act. In the past, the government agency in charge of enforcing the Act has

Health care organizations should make employees aware that they are expected to raise issues of miscon-duct by patients, vendors, and non-employees as well, just as they are expected to raise misconduct by coworkers and members of management.

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taken the position that employment policies violate the law if they are so ambiguous or broad that they may be construed by employees as barring them from collectively discussing their terms and conditions of employment.19

Health care organizations should make employees aware that they are expected to raise issues of misconduct by patients, vendors, and non-employees as well, just as they are expected to raise misconduct by coworkers and members of management. Employment policies on harassment also must be reconciled with various other policies and procedures governing the workplace. For example, an internal complaint by a union-rep-resented employee against a physician may involve a reconcil-iation of policies and procedures in the employee handbook, collective bargaining agreement, corporate responsibility program, and medical staff bylaws. Moreover, if the complaint was made through multiple avenues, such as a pending griev-ance and a compliance hotline call, the investigations must be reconciled. For example, labor relations may need to coordinate with compliance. Likewise, for executives, now is the time to review employment agreements to ensure they address the consequences for harassment, and possibly the parameters of when the employer will indemnify their actions.

Further, it is important to have an effective policy for reporting harassment or suspected harassment that offers some reasonable measure of confidentiality and an assurance of non-re-taliation. Reporting avenues should be reviewed periodically to ensure they are effective in that employees actually feel safe in utilizing them. Consider also adding language that employees who fail to report sex harassment also may be disciplined.

Training is also crucial, but it must be given to employees at all levels and it must go beyond explaining what constitutes sex harassment. It is important to state the obvious types of inappropriate conduct in the workplace, such as inappropriate touching or comments. In addition, discuss bystander interven-tion, the impact of sex harassment on the workplace, and conse-quences for violations. Supervisors cannot tell complaining employees to “just ignore” inappropriate conduct. Further, alleged harassers must understand the impact of their inappro-priate behavior to minimize the likelihood of it occurring again.

Action Plan Just like plans to address a security incident or weather emer-gency, adopt an action plan for how to appropriately handle issues observed and complaints received. The plan should include an avenue for closing out the investigation with the employee who made the complaint. This will ensure consis-tency, promptness, and completeness in taking appropriate remedial action. It also will create some transparency for the employee making the complaint, who will want to know the details of the investigation and the result. Closing out the inves-tigation, even in a limited fashion, will help to alleviate later claims by the employee that nothing was done because he or she never heard anything further regarding the complaint.

Any action plan also should make clear a supervisor must not wait for a complaint, as courts hold employers liable for harassment of which they are actually or constructively aware. For example, in Maccluskey v. Univ. of Conn. Health Ctr.,20 the Second Circuit stated, “[e]ven where an employer provides a

38 AHLA Connections July 2018

reasonable avenue for complaint, it may be liable if it knew or should have known about the harassment and failed to take appropriate action.” In that case, the harasser was a dentist whom the employer first disciplined in 2000 for inappro-priate sexual conduct. At that time, the dentist signed a last chance agreement, but his supervisor was never informed of the incident or the last chance agreement. The plaintiff began working for the health center in 2008 and, within six months, the harasser began to subject her to inappropriate comments. The plaintiff complained to two coworkers, who vaguely told their supervisor there was a “situation” in the clinic. When the supervisor asked the plaintiff about the situation in the hallway, she confirmed that there was a situation, but she was “all set” and it was under control. The supervisor did not investigate further. The “situation” escalated to physical touching and the plaintiff made a formal complaint, which led to the harasser’s resignation. In the lawsuit, the employer was found liable and received a $125,000 judgment against it. The court focused on the center’s failure to make the supervisor aware of the last chance agreement, the supervisor’s failure to follow-up on the “situation” in a private setting instead of the hallway, and the supervisor’s failure to take any follow-up action.

Lastly, another challenge for certain health care organiza-tions is that the physician accused may be a partner, owner, or executive of the entity. Addressing the complaint properly in the action plan may be more complicated and consider-

ation should be given to engaging an independent third party to conduct the investigation. Likewise, it may be difficult to investigate the complaint allegations if the alleged harasser is a non-employee, because the employer may not be able to compel cooperation from non-employees. The employer, however, may still gather as much information as possible to reach a reason-able conclusion and make a decision based on the information provided. For a vendor, such action may include having the vendor-representative reassign the alleged harasser to another account. In the case of a patient, the action plan may include ensuring there is always a second health care employee in the room when treating the patient, restricting the patient’s access to certain areas of the facility, or actively monitoring the patient’s conduct while at the facility. In extreme cases, the patient may be advised to seek care elsewhere, but there are other legal implications regarding patient care that should be examined beforehand.

ConclusionThe law and the types of claims brought for sex harassment are evolving but the exposure to the institution, as well as individual liability, remains unchanged. As individuals continue to talk about shared experiences, class and collective action lawsuits can be expected. Federal and state legislatures, in addition to the EEOC, are exploring measures to further address sex harass-ment. For example, recent federal legislation restricts settlement agreements by curbing the use of non-disclosure provisions in such agreements.21 As another example, recent New York legisla-tion requires certain employers to have a sex harassment policy and training program for all employees.22 Health care insti-tutions must be proactive in establishing measures to prevent and respond to discrimination, harassment, and retaliation complaints. A comprehensive approach should communicate expectations for supervisors and employees, and also must continue to monitor efforts for effectiveness.

Tiffany Buckley-Norwood is a Principal at Jackson Lewis PC, a national labor and employment law firm. As counsel to manage-ment, Ms. Buckley-Norwood advises employers of varying sizes and in a variety of industries, including health care. While Ms. Buckley-Norwood has a broad-based employ-

ment law advice and litigation defense practice, she focuses on four specific areas: equal employment opportunity/affirmative action compliance, disability accommodation, legally defensible diversity and inclusion best practices, and retaliation claims. Ms. Buckley-Norwood is a frequent author and presenter on these topics. Her speaking engagements include presentations for the American Bar Association, Institute for Continuing Legal Education, American Society of Employers, Association of Corporate Counsel Michigan, and Michigan Defense Trial Counsel. She received her JD from Boston College Law School.

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emergency, adopt an

action plan for how to

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issues observed and

complaints received.

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Endnotes1 477 U.S. 57 (1986).2 This article refers to sex harassment rather than sexual harassment because

the former emphasizes that inappropriate conduct based on sex can be un-lawful, even if it is not “sexual” in nature (i.e., a sexual advance or touching). For example, a supervisor constantly criticizing a subordinate’s performance may not be sexual in nature, but it may be sex harassment if it is done because of the subordinate’s sex or because of sex stereotypes.

3 524 U.S. 775 (1998).4 524 U.S. 742 (1998).5 U.S. EqUal EmploymEnt opportUnity Comm’n, Charges Alleging Sex-Based

Harassment (Charges filed with EEOC) FY 2010 - FY 2017, available at https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_ new.cfm (last visited Apr. 3, 2018).

6 Enjoli Francis, $168 Million Awarded In California Sex Harassment Suit, Mar. 2, 2012, aBC nEwS, available at http://abcnews.go.com/US/LegalCenter/168-mil-lion-awarded-woman-harassed-raunchy-cardiac-surgery/story?id=15835342.

7 Derek Thompson, Health Care Just Became The U.S.’s Largest Employer: In The American Labor Market, Services Are The New Steel, Jan. 9, 2018, thE atlantiC, available at https://www.theatlantic.com/business/archive/2018/01/health-care-america-jobs/550079.

8 Carol K. Kane, PhD, Updated Data on Physician Practice Arrangements: Physician Ownership Drops Below 50 Percent, 2017, am. mEd. aSS’n, avail-able at https://www.ama-assn.org/sites/default/files/media-browser/public/health-policy/PRP-2016-physician-benchmark-survey.pdf.

9 Jocelyn Frye, Not Just the Rich and Famous, Ctr. for am. progrESS, Nov. 20, 2017, available at https://www.americanprogress.org/issues/women/news/2017/11/20/443139/not-just-rich-famous.

10 Kathryn Casteel, Sexual Harassment Isn’t Just A Silicon Valley Problem, FiveThirtyEight, July 13, 2018, available at https://fivethirtyeight.com/fea-tures/sexual-harassment-isnt-just-a-silicon-valley-problem.

11 42 U.S.C. § 2000e-2 et seq.12 Alaska Human Rights Law, alaSka Stat. § 18.80.300(5); Hawaii Employment

Practices Act, haw. rEv. Stat. § 378-1; Michigan’s Elliott-Larsen Civil Rights Act, miCh. Comp. lawS § 37.2201(a); or. rEv. Stat. § 695.001(4)(a).

13 Cassandra Santiago and Doug Criss, An Activist, A Little Girl And The Heartbreaking Origin of ‘Me Too’, Cnn U.S. Edition, Oct. 17, 2017, available at http://www.cnn.com/2017/10/17/us/me-too-tarana-burke-origin-trnd.

14 Melissa Chan, The Story Behind the Woman You Don’t See on TIME’s Person of the Year Cover, timE magazinE, Dec. 6, 2017, available at http://time.com/5052362/time-person-of-the-year-2017-arm-cover.

15 Beth Healy, Fenway Doctor Leaves Two More Posts: Accused of Sexual Harassment, Bullying By Two Doctors, Lawyer, thE BoSton gloBE, Jan. 2, 2018, at Metro, p. B-1.

16 Beth Healy and Sacha Pfeiffer, For years, Fenway Health Center Kept Prominent Doctor Accused of Harassment, thE BoSton gloBE, Dec. 8, 2017, available at https://www.bostonglobe.com/metro/2017/12/08/for-years- fenway-health-center-kept-prominent-doctor-accused-harassment-bullying/djZugTTaxy1upIJfThMQZK/story.html.

17 Beth Healy, Former Fenway Health Doctor Resigns Medical License, thE BoSton gloBE, Jan. 12, 2018, available at https://www.bostonglobe.com/metro/2018/01/12/former-fenway-health-doctor-resigns-medical-license/a5Te87paWDq1cTbr7VoQ8J/story.html.

18 U.S. EqUal EmploymEnt opportUnity Comm’n, Report of EEOC Select Task Force On The Study Of Harassment In The Workplace, available at https://www.eeoc.gov/eeoc/task_force/harassment (last visited Apr. 3, 2018).

19 See U.S. nat’l laBor rElationS Board, Report of the General Counsel Concerning Employer Rules, Memorandum GC 15-04, Mar. 18, 2015, available at https://www.nlrb.gov/reports-guidance/general-counsel-memos (withdrawn on Dec. 1, 2017).

20 No. 17-0807-cv (2d Cir. Dec. 19, 2017).21 See 26 U.S.C. § 162(q).22 Jonathan L. Bing, Richard I. Greenberg, Daniel J. Jacobs, James L. Ansorge and

Brian R. DeShannon, New York City Enacts Anti-Sexual Harassment Legislation that Includes Training Requirement, JaCkSon lEwiS p.C., May 9, 2018, available at https://www.jacksonlewis.com/publication/new-york-city-enacts-anti-sexual- harassment-legislation-includes-training-requirement.

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