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Responding to Sexual Harassment
Glossary
 

Welcome! This article is part of a Medscape Physician Business Academy course, . Visit the Course Page to take the full course and receive a certificate.

First Steps: What a Victim Should Do

Document, Document, Document

If you're a victim of sexual harassment, the first step is to start documenting it. Write down a detailed description, including who was involved, when it took place, what happened, and how it happened. This will serve as evidence later on. Write your description while it is still fresh in your mind.

It is important to date the incident and your description of it for future reference. You can do this by sending your notes to yourself in an email, which will time-stamp delivery. Use your personal email, because your work email is not private.

File away documentation, such as offensive letters, photographs, notes, emails, or text messages you have received. Take screenshots when necessary. Also, keep copies of your performance evaluations and any memoranda or letters documenting the quality of your work, which can document retaliation.

Confronting the Offender

Some victims may choose to confront the offender, as long as they feel comfortable doing so. If they don't wish to confront offenders directly, they can contact them in writing. But they don't have to do to contact them at all if they don't want to.

Telling the harasser 'no' clearly establishes the fact that the behavior was unwelcome, which is an important part of a legal claim as well.

Victims are not required to confront the offender in order to file a complaint with the employer, but doing so puts the victim in a stronger position in a complaint. Telling the harasser "no" clearly establishes the fact that the behavior was unwelcome, which is an important part of a legal claim as well.

Sometimes a straightforward "no" can stop the offender's actions. When people don't understand that their behavior is inappropriate—such as a patient asking for a date—it may be enough to deflect the comment and get back to the care you are providing. When sexually inappropriate comments were meant as a compliment, you can sometimes stop them by saying you don't appreciate them.

In some cases, however, you will need to be more emphatic when confronting the harasser. Describe the behavior and tell him that it must stop. Use "I" statements, focusing on how the harassment is affecting you. If verbal requests are not effective, then try putting your request in writing or report it to your supervisor or human resources (HR).

Sometimes the harassment involves a group of fellow workers making sexual jokes. Even if they are not singling out anyone in particular, this is still considered a form of sexual harassment. If it makes you uncomfortable, ask them to stop it or report the incident to your supervisor or HR.

Reporting Harassment to Your Employer

When victims report an incident of sexual harassment to their employer, they often do so by approaching their supervisor—which, for doctors, usually means their department head. In large organizations, they can go to the HR office.

More likely, however, victims don't make any report at all. Medscape's June 2018 survey of physicians showed that 60% of those who had experienced sexual harassment did not report it. The most common reasons they gave were that they feared being accused of overreaching, believed no action would be taken, feared retaliation by the perpetrator or by management, and expected lack of support from the organization.

These reasons are often justified. The victim may be aware that reports are typically ignored. The supervisor may have a narrower definition of sexual harassment than does the victim.

There have been reported instances where the supervisor may advise the complainant to maintain a stiff upper lip and overlook the incident. "Don't worry about him, honey," one supervisor said, according to a complaint investigator. "That's just the way he is. It doesn't mean anything."

Technically, supervisors are obligated to take a complaint seriously and make sure it is investigated. Employers who slough off complaints are liable to lose sexual harassment cases in court.

Deciding Whether to Report

Filing a complaint gives your employer a chance to stop the harassment. If you do nothing, the harassment is likely to continue. Not only you, but other people as well, may be affected.

Review the workplace policy to see whether it applies to your case. Typically, the policy provides examples of sexual harassment, but it can't list all the possible situations.

Other Early Steps

Find allies within your workplace. Look for coworkers who you think might sympathize with your situation and could help explain what is happening. This may help you turn up witnesses, coworkers who have been harassed by the same person, or higher-ups who might be willing to help you with your complaint.

Foster a support network outside work. Sexual harassment can be debilitating, and you may not be fully aware of how much it is eating away at you. Make sure you have friends or some other kind of supportive network outside of your workplace, such as psychological therapy. This is particularly essential when no one at work is sympathetic.

Don't quit your job. Though at times you may be tempted, resigning is not a good option. Quitting weakens any legal claims you could pursue. In some situations, you may need to leave because the harassment is grave. In that case, try to negotiate a mutually agreeable departure with your employer.

Find out about workplace policy. Learn specifics about your employer's sexual harassment policy and who officially handles complaints. But even if your workplace does not have a formal policy, you can still file a complaint there.

Making a Complaint

You can file your complaint in person or in writing. The advantage of reporting in person is that you can get an idea of the reaction to your complaint. But you may still be requested to submit your complaint in writing.

The advantage of a written report is that it can be used as evidence that you filed a report with your employer, which you can use in court if your employer fails to act.

Anonymous Complaints

To guard against reprisals, complainants may insist on making anonymous complaints. These can be submitted on an anonymous hotline, which some large organizations provide, or simply by leaving an anonymous letter with HR or a supervisor.

In many cases, anonymous complaints can easily be investigated because they point to harassing behaviors that involve witnesses and evidence, such as acting out in front of a group of people or displaying pornography.

When anonymous complaints reveal incidents between just two people, investigations can become more challenging. The alleged harasser can simply deny the allegation, and the complaint becomes a matter of "he said, she said."

But this also happens when complainants reveal their identity. Investigators must then examine evidence that helps prove or disprove the complainant's story. There may be sufficient evidence to put the harasser's behavior into question, and to result in some form of discipline.

If you write a report, document how the incident has affected you emotionally or physically, or whether it has affected your work. Supply the date or dates of the incidents, specifically what happened, and the names of others who witnessed the incident or other behavior by the harasser.

If you send a written report to HR at a large organization, you should expect to receive acknowledgment on the same day. Your employer is then obligated to begin an investigation expeditiously. There is no legal time limit, but generally it should begin within 48 hours of your report.

Small practices may take longer if they have not had to handle complaints before. Legally, a very small practice may not have to respond to your complaint at all. The federal law only applies to employers with 15 employees or more. Many states, however, have lower thresholds: for example, one employee in Arizona and Illinois; four in New York; five in California; and eight in Washington State. You can look up your state here.

An Employer Might Not Take Action

Failure to act on a complaint is common. Among the physicians who reported sexual harassment in the Medscape survey, 37% said their organizations did nothing and 27% said they trivialized the incident.

When faced with a complaint, managers may feel put in a very uncomfortable position. They have to reconcile their obligation to enforce the law with their need to protect the institution. A sexual harassment complaint can bring negative publicity. And when a high-level doctor is accused, it brings the risk of losing a valuable asset who generates a great deal of income for the institution.

Those are the business reasons for ignoring a complaint. On a personal level, supervisors may believe that many sexual harassment complaints are overblown. Some people are not as aware as they should be of Title VII of the Civil Rights Act of 1964, a federal law that protects employees against discrimination based on race, color, national origin, sex, and religion.

Complainants May Face Retaliation

When victims actually do file a complaint, they often face retaliation, as do witnesses whose testimony supports the victim's claim. Retaliation comes in many forms. In its most obvious manifestations, it can involve adverse actions, such as a demotion, a reduction in salary or benefits, or termination.

In 2017, three quarters of sexual harassment charges filed with the EEOC included a charge of retaliation.

How common is retaliation? A study found that 75% of employees who spoke out against workplace mistreatment faced some form of retaliation. In 2017, three quarters of sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) included a charge of retaliation . The EEOC and the courts view retaliation as further evidence of wrongdoing by an employer, and are more likely to take action when retaliation is also alleged.

Retaliation can also be more subtle, such as a disciplinary action or a performance evaluation that is more negative than is warranted. It can be a change in responsibilities, a transfer to a less desirable location, a change of work hours, and isolation. There are many other ways to make the employee's work more difficult.

In a 2019 lawsuit filed in federal court in Philadelphia, a resident physician alleged that when she complained of sexual harassment by a supervisor, she was first ignored, then referred to psychiatric care, and ultimately fired.

Organizations may handle sexual harassment complainants as they would any difficult employee they want to be rid of—an action that is referred to as "constructive discharge." The goal is to make employees' lives so miserable that they will quit on their own, without having to fire them. In one action against a sexual harassment complainant, her desk was moved into a hallway outside her office, and her computer and phone were taken away from her.

Retaliation can also be committed by the person charged in the complaint, or even by coworkers in the form of belittling or ostracizing the complainant. This is particularly common in remote locations that are removed from corporate oversight, but it also can happen right under the noses of managers.

If you suspect retaliation, it requires an investigation. The investigators will look for a time link between when you filed the complaint and when the retaliation took place. They will also want to know whether evaluations before the complaint praise your work, and then might trash you after the complaint.

Interim Actions After Reporting the Event

During the investigation, your employer may take interim action, such as separating you and the accused harasser, or putting the accused harasser on paid leave. The victim/accuser should not be put on leave, because that can be viewed as retaliation. Of course, be on the lookout for any kind of retaliation, such as switching you to a less desirable assignment.

If you are under emotional stress, your employer may offer you counseling through its employee assistance program or allow you to take time off under the Family and Medical Leave Act. Victims of sexual harassment may have difficulty sleeping,? getting up in the morning, eating, exercising, or enjoying themselves.

You can request your employer to keep your identity confidential, to avoid retaliation. But in a case of one-on-one harassment, there can be no absolute guarantee of confidentiality. Under Title VII, the employer cannot reveal the identity of the complainant, but the accused may still be able to figure it out.

Dealing with harassing patients and their families is usually easier than dealing with fellow workers. It may be possible to switch the patient to another caregiver. Practices can also terminate disruptive patients. This requires sending them a formal termination letter and helping them find a new doctor. Dealing with harassing family members is more straightforward. Tell them they will be barred from the hospital or practice if they continue the behavior.

Investigating Your Complaint

Typically, your complaint will be investigated by HR personnel, the organization's attorney, or an outside expert. They will ask you questions about the incident, gather evidence, and write up a report. Then, typically the leadership of the organization will make a decision based on the findings in the investigators' report.

If there is no direct evidence, such as email or witnesses, how can investigators determine whether the incident occurred? Isn't it just "he said, she said"? The answer is that in most cases, there is sufficient evidence to make a decision—such as the accused harassers' interactions with other people, past veracity, and the veracity of complainant.

Unlike criminal cases, your employer does not have to prove harassment "beyond a reasonable doubt," but merely has to find that there is a "preponderance of evidence." In other words, it is "more likely than not" that sexual harassment occurred. However, your employer is obligated to treat accused employees fairly by listening to their version of events, gathering evidence that might support that version, and making an even-handed decision.

After the Investigation

If your workplace finds that harassment occurred, it must take action to prevent it from happening again. This might involve assigning the harasser to another department, putting the harasser on unpaid leave, or firing the harasser.

Alternatively, harassers might be required to get training to teach them how to stop the behavior, or they might be asked to apologize and promise never to harass again. In many cases, the victim simply wants an acknowledgement that the harassment was wrong and assurances that it won't happen again. Of course, there is no guarantee that harassers will mend their ways, and they may not even want to apologize.

In some cases, the employer may decide that no harassment took place, refuse to take action to stop the harassment, or even retaliate against the complainant. Victims can file a complaint against their employer with the EEOC or an equivalent state or city agency.

In the case of medical students, residents, or academics, they would file a Title IX complaint against their educational institution at the Office of Civil Rights in the US Department of Education. The process is similar to a Title VII complaint.

Filing a Complaint With the EEOC or Other Agency

When you file a complaint with the EEOC, or another federal or a state investigating agency, keep in mind that the agency will not make charges against the harasser. Rather, it will be investigating whether the employer allowed sexual harassment to occur and, if so, what the employer needs to do in order to stop it.

If you file a complaint with the EEOC, you must do so within 6 months of the date of the most recent episode of harassment or retaliation. But don't expect the EEOC to automatically uphold your case. Among the sexual harassment cases the EEOC handled in fiscal year 2019, it found no reasonable cause for harassment in 54.6% of the cases, and closed 22.7% more without any finding at all. Only 24.4% of complaints were successful.

One challenge is that the EEOC is typically understaffed and will often focus on the cases that are the most egregious, don't require much investigation, or are easy to win. The federal agency is also chronically underfunded, so if you win, don't expect a big payment—or any payment at all—to help you get through the experience. According to the fiscal year 2019 report, only some successful complainants were awarded monetary benefits, and those benefits are typically in the thousands of dollars.

There are no available statistics for state agencies or, in the case of Title IX complaints, the Office of Civil Rights at the Department of Education. Complainants who lodge their complaints with these agencies may have a better chance of winning their cases there, but it probably depends on the agency.

Viewing the outcomes, filing with the EEOC may seem to not be worth the time involved. However, it's a necessary step in order to file a lawsuit against the employer in the courts. Whether you win or lose with the EEOC, it often issues a "right to sue" letter that allows you to go to court. Agencies with the state, city, and Department of Education also issue such letters.

Going to Court

At the EEOC, once complainants have received the "right to sue" letter, they have only 2 months to file a lawsuit against the employer. Time limits may be different at other agencies. Filing a lawsuit usually involves hiring a lawyer and preparing a more extensive case than an EEOC complaint, but it can be well worth it.

Successful cases in the courts may pay hundreds of thousands of dollars and can even exceed $1 million. That's because the courts allow such remedies as back pay, reinstatement, promotion, punitive damages, and payments for pain and suffering. These high sums send a message to employers that they can't allow sexual harassment to occur.

In lawsuits involving high-earning doctors, employers often agree to a confidential settlement. The victim is paid a high figure, and part of the settlement is agreeing to remain silent. The employer does not admit any liability, and the harasser may not be disciplined at all.

Sometimes, settlement agreements made by hospitals or health systems are revealed by the media, such as when a New York City newspaper discovered public documents about settlements made by city-owned hospitals.

In one of those cases, a hospital paid a surgical technician $140,000 after she filed a lawsuit against the hospital's director of anesthesiology, accusing him of fondling her, referring to female staff as "bitches" and "whores," and lasciviously staring at her.

Is it ethical for victims of harassment to accept settlements? In fact, confidential settlements are already used at an earlier stage by the EEOC and other agencies—though in exchange, agencies often require employers to do a better job controlling harassment. The employer is required to take specific steps, such as training staff and managers, using competent investigators, and rewriting policies and procedures.

Furthermore, getting a large settlement in the courts gives complainants the resources to get on with her lives. But the downside, as exposed in many of the #MeToo cases, is that the offender's behavior is allowed to continue unchecked, with the possibility of more workers being victimized.

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Welcome! This article is part of a Medscape Physician Business Academy course, . Visit the Course Page to take the full course and receive a certificate.

 

Susan Strauss, RN, EdD

| Disclosures | January 01, 2020

Authors and Disclosures

Author(s)

Susan Strauss, RN, EdD

Strauss Consulting, Burnsville, Minnesota

Disclosure: Strauss, RN, EdD, has disclosed no relevant financial relationships.