Personal harassment creates liability
Personal harassment creates liability
Eliminate risk with a careful policy
By G. Michael Barton, SPHR
Vice President of Human Resources
Regional Medical Center
Madisonville, KY
Risk managers are on the alert for sexual harassment because it has received a great deal of attention in recent years, but another type of harassment poses a special risk in health care settings and could go overlooked until the victim sues.
It is personal harassment, the most subtle type of harassment in the workplace. Personal harassment is extremely damaging to workplace harmony, and it also violates the Civil Rights Act, whose definition of harassment was expanded as of July 1, 1998. Specifically, any conduct that creates an intimidating, hostile, or offensive working environment will be closely scrutinized. This has opened the floodgates for employees to claim protection under this expanded interpretation and seek relief from the Equal Employment Opportunity Commission (EEOC). The consequences could be devastating to those employers who have allowed supervisors to belittle, intimidate, or denigrate employees. It is equally important that employees are prevented from engaging in personal attacks, unwanted taunting, and other unacceptable behavior with co-workers.
Health care employers can be at increased risk of personal harassment lawsuits because of some factors that are inherent in their work environment — 24-hour service, minimal staffing in some situations, a tradition of tolerating what might now be construed as abusive or disrespectful behavior, and similar factors.
Make clear you will not tolerate harassment
Employers must carefully orchestrate an environment that eschews any behavior that could be construed as harassing. Let’s begin by looking at some examples of personal harassment and how it could create an offensive work environment in your health care facility. As you will see, some of them are common, if regrettable, situations that risk managers might not realize could amount to harassment.
1. Supervisor criticizes employee without appropriate documentation.
The role of the supervisor is to provide guidance and assistance to the employee. Supervisors who openly criticize employees without providing written documentation of why the performance was unacceptable may be building a strong case if the employee seeks outside relief from the Equal Employment Opportunity Commission or other legal action. A lack of assistance from the supervisor could signal that personal harassment is taking place.
The bottom line is that you must ensure that supervisors are forthright in dealing with performance issues. This includes meticulously documenting deficiencies and sharing them privately with employees.
2. Personality clashes occur.
These clashes can occur between the super visor and employee or between employees. In either case, it may signal that personal harassment is present. Typically, these clashes escalate into more serious problems in the workplace. A supervisor may limit an employee’s opportunity for growth in the organization simply because of a personal dislike for the individual. For instance, a chief of surgery may restrict a resident or intern’s ability to participate in certain advanced surgical procedures because he does not like that person.
Without appropriate documentation of legitimate reasons for the restriction, that could be the basis for personal harassment. The supervisor may inform the employee, "Your opportunities for growth are limited in this organization," and provide no further explanation, or a supervisor could say, "I don’t want you here because I simply don’t like you." In both cases, the supervisor is overtly building a case for personal harassment. Such statements humiliate and insult an employee and provide no objective feedback from which corrective action can be taken.
When the personality clash is between employees, it can be just as devastating. Most medical organizations use employee teams to accomplish many of their significant projects. Personality clashes can result in some employees being excluded from the more important assignments if work leaders choose only individuals they like. Other employee clashes can create hostile work environments or even lead to violence in extreme cases. It is important to address any personality clash directly and honestly with the parties involved before it creates major problems in the workplace.
3. Employees who receive accommodation in the workplace are treated unfairly.
Employees who have medical disabilities are protected by the Americans with Disabilities Act. Most organizations know this and are fully compliant with the law’s regulations. The problem comes in when the employee receiving the accommodation is treated unfairly by supervisors and co-workers. This unfair treatment may include employees and supervisors saying some hurtful and demeaning things such as: "I can’t believe you can only lift 10 pounds," or "We feel cheated because you don’t have to work as hard." If the supervisor or co-workers continue to treat the employee in such a manner, he or she may feel the need to file a complaint with the EEOC or corporate compliance officer, if one is available.
4. Employees engage in taunting, destructive gossip, and offensive horseplay.
Any of this type of behavior can create a hostile work environment. Although some of it may not directly violate legal regulations, it can be extremely destructive to workplace harmony. Many astute medical organizations have add ressed this behavior in their "code of conduct." The code spells out the responsibilities that employees must embrace to be effective organizational members. These responsibilities generally include treating co-workers with dignity and respect.
5. Harassment based on generation gap, age, or seniority occurs.
If a generation gap exists in the mind of a supervisor or employee, it may trigger personal harassment confrontations. A good example is the older supervisor who unjustly labels the "Generation X" employee as lazy and irresponsible because he refuses to work late. Or, it could be the Generation X supervisor who berates the older employee for "being a technology dinosaur" when it comes to learning new computer programs.
This is why it is important to establish a working environment that treats all employees equally regardless of generational or age differences. Generational differences should be used to build a solid workplace foundation rather than be fuel for a personal harassment battleground.
6. Employee is harassed for refusing to engage in recreational or other outside activities.
This type of personal harassment is extremely common. An example would be the supervisor who gives the plum assignments and high performance ratings to those employees who fraternize with him or her outside of work.
The problem with this is that it can result in the supervisor being charged with discriminating against the other employees. The employee in this instance may claim that the supervisor created an "intimidating and offensive work environment" by requiring him or her to associate with the supervisor outside of work.
The only way to avoid such charges is to not create such an atmosphere in the first place. There should be a compelling business reason for requiring employees to attend outside activities. Attending the big game or partying with the boss are not defensible reasons.
Remember that it is not enough to say that attendance is optional. If it becomes clear that attendance is necessary to further the employee’s career, that may be the same as requiring attendance.
7. Employer fails to provide appropriate training or information.
This becomes a personal harassment issue when the employee is unable to perform his or her job because of an inability to receive training or other key information. A supervisor may threaten to withhold training or information unless the employee provides sexual or personal favors. Such personal favors may include engaging in unethical behavior such as asking the employee to clock in or out for someone else or to write off an account balance for friends of the supervisor.
The employee can report such requests to the corporate compliance officer or to the human resources director. In any case, such actions create an offensive and hostile working environment and violate Title VIII of the Civil Rights Act.
8. Supervisor or co-worker discriminates because of cultural differences.
Cultural differences include religious, ethnic, personal, dress, and racial distinctions. The possibilities for personal harassment are endless. Supervisors can discriminate according to cultural differences when hiring, firing, assigning, evaluating, and compensating an employee. Obviously, the employee is clearly protected legally in all of these situations.
What happens when the discrimination is more subtle; for example, employees who are harassed because of their dress, accent, or personal beliefs? This type of personal harassment can be illegal because it results in an "offensive work environment" for that individual. It may also violate the organization’s code of conduct, if one exists. Even if a code does not exist, the employee should report all personal harassment to the organization’s human resources department.
9. A new employee is ostracized.
This can be a dangerous practice because it not only adversely affects turnover but can lead to charges of personal harassment. If the ostracized employee reports the behavior to his or her supervisor and it is not addressed, it may prove detrimental to the organization if the individual takes further legal action. The best approach is to develop a "mentoring program," which pairs the new employee with an experienced employee who will ensure that the initial orientation period is positive and productive.
10. Favoritism is shown.
The normal pattern is for the supervisor to show favoritism in making work assignments or granting time off. Any action taken by the supervisor should be well-documented and consistent with departmental and organizational policy. If a clear pattern exists, the employee may claim personal harassment and seek outside relief.
Generally, these concerns can be addressed by the organization’s grievance procedure if one exists. It is important that the grievance procedure is truly objective. This means when discrepancies are found, they are corrected, even if it entails changing a supervisor’s decision.
11. Physician verbally assaults support staff.
This is a familiar scene played out almost daily in health care organizations. The physician verbally harasses the staff, for instance, by announcing loudly: "You are the worst group of nurses I’ve ever seen. I’m going to make sure none of you ever work in this hospital again. They’ll listen to me because I’m a physician and you are nothing more than stupid nurses."
It is difficult for health care workers to accept a steady diet of verbal abuse. It is important that all employees are treated with dignity and respect. For this reason, some medical organizations have developed "practitioner concern procedures," which allow employees to report physicians who engage in abusive behavior. Physicians should receive sensitivity training that focuses on how to appropriately interact with support staff. In severe cases, physicians who are guilty of personal harassment should be sanctioned or have their practice privileges terminated. Physicians must be made accountable for inappropriate behavior. This can be accomplished only if the organization is willing to take a stand if a violation does occur.
(Editor’s note: See story below for more advice on assessing the risk of personal harassment in your organization. Part two of this article will be featured in the April 1999 issue of Healthcare Risk Management, with sample policies and guidelines.)
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