Unexpected avenues of sex harassment mean hospitals must be on alert
Unexpected avenues of sex harassment mean hospitals must be on alert
Does that tattoo send wrong message?
The 6-year-old boy who was accused of sexual harassment for kissing a girl in school after she asked for a kiss may become the poster boy for overreactions to sexual harassment. Nearly everyone agrees that the little boy should not be in the same category as workplace supervisors who demand sex from employees.
But those are only the extremes of the sexual harassment issue. An innocent kiss from a little boy and an outright sexual assault from a supervisor are easy to define. But what about the hospital orderly who reads a sexually explicit magazine on his lunch break? What if he is sitting alone in an area where no one else will see the magazine?
Or what about a less explicit exercise magazine that still shows a lot of skin? And if the hospital employee has a sexually suggestive tattoo on his arm, can patients legitimately complain of harassment?
These questions are important because sexual harassment cases are on the increase in health care facilities.
Health care risk managers should expect questions of sexual harassment to be that difficult and unclear, advises Jeffrey M. Tanenbaum, JD, an attorney with Littler, Mendelson, Fastiff, Tichy and Mathiason in San Francisco. Tanenbaum told attendees of the recent meeting of the American Society for Healthcare Risk Management (ASHRM) in San Francisco that sexual harassment is a serious liability risk for health care facilities.
Sexual harassment is possible in any workplace, so health care facilities are no exception. But it is easy to overlook a unique concern with sexual harassment in health care facilities the patients. They can be both victims and perpetrators when in the health care facility.
"Hospitals can be liable for patients harassing others in the facility," Tanenbaum says. "They can be harassed by patients or employees, and they can harass others themselves. Hospitals may be especially prone to overlook the harassment between patients, but you still can be liable for that."
The attorney points out, however, that facilities would be liable for sexual harassment between patients only if they knew about it and failed to act.
Increase in claims against providers
Sexual harassment claims in health care are increasing at a "dramatic" rate, Tanenbaum says. While there may be no statistics confirming the increase, he says his own practice has seen a huge jump in sexual harassment cases against health care providers in recent years.
Most of the growth is in claims filed against medical staff by nonphysicians and claims by patients. While those cases were not common several years ago, their numbers have grown for several reasons, says Tanenbaum.
One reason is the tendency of plaintiffs’ attorneys to repeat successful cases. Once one plaintiff wins a suit against a doctor or hospital, people are encouraged to file similar suits. There also has been an increasing emphasis on patients’ rights, which encourages patients to sue when they feel they have been harassed.
But a more significant reason is the trend to see health care providers as businesses rather than a special type of service. The increasing emphasis on managed care and big health conglomerates fuels the trend.
"When patients see you as just another company, they’re more likely to sue you than when they think of you as Dr. Smith and the nurses who take care of you when you’re sick," he explains.
Health care facilities also may be susceptible to sexual harassment claims because they employ a larger-than-average percentage of women, still the source of most claims, and because many employees are well-educated and aware of their rights.
(See p. 151 for suggestions on addressing sexual harassment in health care facilities.)
Sexual harassment charges are almost inevitable in a health care facility, says Jan Bennett, HCRM, ABHRM, director of risk management and hospital safety officer at Coral Gables (FL) Hospital, with 600 employees. She agrees with Tanenbaum that the predominance of women in health care employment greatly increases the chance of harassment or misunderstandings.
"Especially when the males are traditionally in leadership roles, like doctors, and the females are seen as service providers, like nurses, it would be highly unlikely for this issue not to come up," Bennett says.
The risk manager compares a typical hospital to a mini-city, with thousands of people interacting every day. With that many people, "pairs of attraction are going to pop up once in a while. Some people will respond favorably, and some won’t."
Susan Gale Jenkins, MS, LHRM, risk manager at Central Florida Regional Hospital in Sanford, FL, also believes health care facilities can be at particular risk for sexual harassment. Though times are changing, there still is a pervasive attitude that physicians are all-powerful and should not be challenged. That can cause nurses and others to tolerate more sexual harassment than they should, Jenkins says, and could even encourage physicians to take advantage.
Unwelcome’ is the key word
Dealing with potential or real sexual harassment first requires understanding what it is. That is not easy, even for legal and risk management experts who address the topic daily.
The standard definition is provided in 1980 guidelines from the federal Equal Employment Opportunity Commission in Washington, DC.1 They define sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." The most clearly understood type of harassment is "quid pro quo" harassment, in which a manager demands sex and threatens to fire or otherwise punish the employee for refusing. "Hostile work environment" harassment is common but less clear, usually concerning sexual comments, graffiti, and photographs in the workplace.
With "quid pro quo" harassment, one incident is actionable. Yet "hostile work environment " incidents, while no less serious, are less clear-cut. With centerfold pinups in the workplace, for instance, one displayed for a short time may not meet the legal standard for a hostile workplace.
While there is no simple formula for defining sexual harassment, Tanenbaum points out that sexual harassment law depends on a "reasonable woman" standard, not the traditional "reasonable person" standard. The law recognizes that men and women may feel differently about what constitutes sexual harassment, and since most cases are brought by women the woman’s perception is more important.
In some cases, Tanenbaum says you should not drive yourself crazy trying to figure out if a situation constitutes harassment.
"If you have an employee walking around grabbing people’s crotches, this is not a good thing," he explains. "Surprisingly, it might not be considered sexual harassment if the two are of the same sex, but so what? If you want to, forget sexual harassment and call it assault. Or just call it stupid and offensive behavior and put a stop to it."
Cultural differences also can exacerbate the problem. Bennett’s hospital has a large number of Hispanic staff and patients, and that can cause problems with sexual harassment. Activity, comments, and attitudes that might not be considered sexual harassment by a Hispanic woman might offend a woman with another cultural background, Bennett says.
While she is not sure that sexual harassment is on the increase, she says employees are becoming much more aware that sexual harassment is improper.
Coral Gables Hospital has dealt with several charges of sexual harassment, and Bennett reports that only about half involved a superior harassing a subordinate.
"It is a tremendous myth that you need someone in power harassing someone less powerful in order for it to be harassment," she explains. "You will see many instances between peers, people on the same level."
Another unusual aspect of sexual harassment is that you will have the burden of proving your innocence. Technically, the plaintiff has the burden of proof just as in other lawsuits, but as a practical matter, Tanenbaum says you have to prove your innocence which is always difficult. Consider that fact when deciding how to resolve an allegation, he advises.
When you are really vexed by a situation that might constitute harassment, or when a dubious allegation is made, it may not be a good idea to decide on your own how to proceed. The vagaries of sexual harassment are such that you might need to consult with an attorney who is intimately familiar with current law and precedents.
Tanenbaum offers free advice on a few situations that illustrate common grey areas. It is best to prohibit any type of sexually explicit material in the workplace. Even if the employee is reading Playboy quietly on his lunch break where no one else will see it, someone will be offended by the mere presence of the magazine. And distinguishing between something like Playboy, mild by many standards, and a more explicit sex magazine is too difficult. What about the exercise magazine that shows nearly as much skin as Playboy? Banning that in the workplace would be going too far, in Tanenbaum’s opinion. But even with that type of material, which is not actually sexually oriented, be careful how it appears in the workplace. Having an exercise magazine on a shelf where people can choose to pick it up is different from posting a life-size poster of a scantily clad aerobics instructor in the cafeteria where people cannot avoid seeing it. The poster could contribute to a hostile work environment.
An employee’s tattoo could be considered offensive, so it might be reasonable to ask the employee to cover the body art while at work.
Training is the answer to increased risk
Health care workers often are surprised by sexual harassment suits, especially when physicians are charged with harassing nurses or other subordinate staff. Unlike high-ranking professionals in other workplaces, physicians are unlikely to be trained in avoiding sexual harassment.
"Health care providers may be behind other employers in terms of the training they provide in this area," Tanenbaum says.
He advises instituting a carefully designed series of inservices to help all employees and medical staff understand what sexual harassment is and how to avoid it. One of the best methods, he says, is to have actors perform skits addressing common situations that could be sexual harassment. Attendees then are asked to comment on whether they think the situation was harassment, how it could have been handled, what should be done afterward, and similar issues.
"Seeing the situations dramatized really can help clear up a lot of the confusing aspects for people," he says. "It can be a real eye-opener."
Providing education concerning sexual harassment probably should be the responsibility of the risk management department, Bennett says. Jenkins and Bennett both point out, however, that it may be best if sexual harassment complaints are not handled directly through risk management. Both hospitals have policies in place stating that sexual harassment is not tolerated and directing the complaint investigation through human resources. The risk managers are involved in the disposition of the complaint and any subsequent lawsuit, but the investigation itself is handled by human resources.
"Risk management often is seen as concerned with just saving the hospital’s money, so we don’t want to step in right away and make people think that’s the hospital’s concern when the complaint is made," Bennett explains. "We are concerned with the liability aspect, of course, but the staff needs to see that the hospital’s first goal is to take the complaint seriously and do what is right."
[Editor’s note: For more information contact Jeffrey Tanenbaum, JD, Littler, Mendelson, Fastiff, Tichy and Mathiason, 650 California St., 20th Floor, San Francisco, CA 94108. Telephone: (415) 433-1940.]
Reference
1. 29 CFR 1604.11 (1995).
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