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Employers' Role in Sexual Harassment
Employers' Obligation to Respond to a Sexual Harassment Complaint

As we mentioned in the prior chapter, sometimes an employer fails to respond to or act on a sexual harassment complaint. There are many reasons why the supervisor, human resources (HR) department, or other person who receives a valid sexual harassment complaint does not act on it.

Sympathy for the accused. A supervisor may interpret the action as "Boys will be boys. He's just letting off a little steam." However, as stated earlier, if a reasonable woman would regard the behavior as offensive, it should be taken seriously.

Concerns about the punishment. The supervisor may feel that the alleged behavior does not merit the discipline that would result. If the behavior is serious, the accused may face termination, and the supervisor may not believe the accused should be fired.

Misperceptions about the definition. The supervisor may believe—incorrectly—that only criminal behavior, such as sexual assault, should be classified as sexual harassment, and not other types of behavior. The supervisor may not be aware of company policy on what constitutes sexual harassment or the changed definition of sexual harassment.

To protect the organization. The supervisor or HR may want to protect the organization's reputation or its income and not want to trigger negative publicity.

These reasons for ignoring a complaint can get the employer into trouble. The employer is required to take all complaints seriously. The complaint could become a sexual harassment lawsuit in the courts. If the lawsuit is successful, the employer may have to pay millions of dollars in penalties.

Beyond the legal concerns, though, there are far more compelling reasons to take a complaint seriously. Above all, the victim may be suffering badly, and acting on the complaint can alleviate that suffering. Second, it demonstrates to employees that the organization takes sexual harassment seriously.

There are also considerations about productivity and safety. When the victim takes steps to avoid the harasser, it's harder to get work done, and these workarounds may harm patient care.

The bottom line is that an organization needs to have policy and procedures in place to deal with sexual harassment, and everyone should follow them. Diverging from one's own policy and procedures can make an employer liable in a lawsuit based on Title VII.

Different Responses From Different-Sized Systems

Small practices and large systems have very different ways of handling sexual harassment complaints.

In a small practice, the office manager or a partner is usually responsible for dealing with complaints. This person may lack experience in handling them—especially when complaints are rare, which happens a lot in small practices. On the other hand, small practices rely on personal relationships to solve issues, which can be very effective. An alert and caring partner or supervisor is in a good position to handle a complaint responsibly.

Legally, very small practices are often excused from dealing with sexual harassment complaints. Title VII generally doesn't apply to employers with fewer than 15 employees, but state and local laws sometimes have lower thresholds. Still, even if you are off the hook legally, you have a moral obligation to help the targets of sexual harassment. There are also potential reasons pertaining to quality of care that already have been stated.

In contrast, large practices, hospitals, and health systems tend to have a system in place to deal with complaints, including policy statements, complaint procedures, and training programs, and oversight devolves to HR departments and departmental supervisors.

For a large organization to properly handle a complaint, it must put the welfare of its employees before its need to defend the institution.

For a large organization to properly handle a complaint, it must put the welfare of its employees before its need to defend the institution. Even when the harasser is a prominent doctor who brings in a great deal of business, the behavior has to be stopped for the good of the whole organization.

Be on the Lookout

Before you have to deal with an actual complaint, it helps to keep your eyes wide open about what is going on in your workplace. If you see employees bullying or harassing someone, try to stop it, using your own policy as a guide. Even simple incidents, if left unchecked, may violate policy and can escalate into significant harassment.

Just because no actual complaint has been filed does not mean that the organization is free of sexual harassment. The employer has a legal responsibility to be aware of incidents and to look into what is going on. The employer may be liable if someone in management "knew or should have known" about the offensive behavior and did not take action.

Furthermore, employees are looking for proactive leadership to set the tone. If it looks like management condones harassment, more of it will undoubtedly take place. If you hear gossip about sexual harassment, investigate it and stop it. Don't let it in mutate into an organization-wide malignancy.

Dealing With Parties in a Complaint

A complaint becomes active when a complainant brings it up to a supervisor, HR, or anyone else in management. Or a complaint can become active if a supervisor or HR becomes aware of sexual harassment through gossip or other actions. Here are guidelines to handling each party in the complaint.

Dealing With Complainants

Take all complaints seriously. Management has a duty to investigate a complaint even if it is made informally or anonymously. That duty persists even when the alleged victim does not want an investigation to occur. Ask the complainant for written narrative and any documentation.

Treat complainants with respect. Victims usually find it very difficult to make allegations about sexual harassment or discrimination. Let them know you recognize the courage it takes to come forward, thank them for raising the concern, and assure them that the complaint will be taken seriously.

Be a good listener. Ask questions, but don't interrupt. Take notes during the interview, and explain how they will be used. Basically, the notes will be used by investigators.

What does the complainant want to happen? Ask complainants what would she or he like to see happen as a result of the complaint. In most cases, complainants merely want the behavior to stop, or they may request additional action, which may or may not be feasible. Consider whether the request is appropriate and could be implemented.

Suggest counseling. Inform complainants of available counseling, such as the organization's employee assistance program. The complainant may want to move to another department or take time off, but any involuntarily transfer could be seen as retaliation.

Ask about confronting the harasser. If complainants have not confronted the harasser, advise them that they have the right to do so. In they do decide to confront the harasser, ask them to report the exchange back to you.

Ward off possible retaliation. Make clear to others involved in the complaint that retaliation will not be tolerated, and give examples. Instruct the complainant to report any retaliatory behavior either to you or HR. Even well-meaning actions, such as putting complainants on paid leave or removing them to a new location to protect them, might be seen as retaliation.

Strive for confidentiality. Confidentiality cannot be guaranteed to the accuser or witnesses, but employers should strive for confidentiality whenever possible. In many cases, the accused will be able to guess the identity of the accuser or witnesses, but as a rule, their identities should not be revealed to the accused person.

Quickly initiate the investigation. Delays of even a few days can make investigations difficult and send a signal to the complainant that the organization is not taking the complaint seriously. That message will register not only with the complainant but with other employees looking to see how the organization handles complaints.

Be on the lookout for more problems. Encourage the complainant to report any future harassment or retaliation. Make a follow-up appointment to make sure further harassment hasn’t occurred and continue to monitor. Review employment decisions affecting the complainant and witnesses to make sure they don't become retaliatory.

Dealing With Witnesses

Interviewing witnesses is crucial in a harassment investigation. They can verify whether an event happened, whether the accuser is believable, and whether the accused employee would be capable of harassment, based on other actions.

When the accused employee is a friend, witnesses are often unwilling to see the accused as a harasser, but they may still be able to verify events, which can help build stronger conclusions for the investigation.

The experience of witnessing harassment and then fearing possible retaliation can leave psychological scars.

Let witnesses know that they are protected from retaliation. Under Title VII, it is illegal for an employer to retaliate against a witness for reporting an event. In addition, witnesses may need psychological counseling. The experience of witnessing harassment and then fearing possible retaliation can leave psychological scars.

In many cases, witnesses are bystanders who could intervene in the harassment. For this reason, many organizations want employees to take a more active role, through bystander training, which will be discussed in Chapter 5.

Dealing With Accused Employees

The employer's chief concerns with the accused are that they do not retaliate against complainants and that they are afforded a fair investigation. If the accused tries to retaliate, the employer is liable.

Instruct them not to contact the complainant. Any attempt to contact the complainant could be viewed as retaliation. If the accused violates the instructions, take immediate action.

Consider putting the accused on paid leave. Unlike with complainants, this would not violate the rights of the accused, and it eliminates the risk for further harassment in the interim period.

Separate the accused from complainant. If accused employees stay at work, try to find ways to separate them from the complainant to guard against retaliation. This is not easy to do in medicine, where caregivers have specific roles, but it may be possible to move employees within a large health system.

Monitor the accused. The supervisors of accused employees should be keeping tabs on them to make sure they are no longer harassing the complainant. To make sure the accused has stopped the behavior and is not retaliating, supervisors should meet with the accuser a few days after the report and then every week or so, until the supervisor is convinced that the situation has been remedied.

Treat the accused fairly. Legally, employers have a great deal of leeway in taking actions against an employee, including termination. They do not need to provide an opportunity for cross-examination, hearings, and appeals. However, it is important to hear the accused's side of the story and to make a fair decision. If the process is not fair, the accused may be able to sue the employer under labor, contract, or tort law.

When Patients and Family Are Harassers

The employer is responsible for harassment by patients, their family members, or any other visitors. In an Ohio case, staff at a chiropractor's office alleged that his patients sexually harassed them and he did not remedy the situation. An appeals court ruled that the chiropractor was responsible if he knew or should have known about the harassment.

It is often less complex to confront family and other visitors. You can tell them that if the behavior continues, they will not be allowed to visit any more. Provide the patient with a handout that outlines the organization's clear stance against bullying and harassment of physicians and staff.

The employer is responsible for patients' harassment even when the patients have traumatic brain injuries, dementia, or are impaired for other reasons. The bottom line is that the employer remains responsible for protecting staff.

Contracted Employees as Harassers

All worksites, including hospitals, are liable for harassment committed by employees of a contracted company working there. This could include a practice that provides emergency physicians or a contracted ambulance service. In these cases, both the worksite and the contracted company may be liable for sexual harassment committed by these employees.

The situation changes, however, when these workers are the victims of harassment. The workplace is not required to protect them under Title VII, though the contracted firm that hires them is responsible. Meanwhile, states are beginning to make the worksite responsible, too. Under a 2018 statute in New York, for example, the worksite employer can't use the fact that the harasser works for another company as an excuse for not protecting them.

Independent Physicians as Harassers

In a hospital, physicians who are accused of harassment may not be hospital employees, but instead are independent practitioners who are members of the hospital medical staff.

These physicians may have specific rights, based on the medical staff bylaws. So it is important to follow the specific steps for an investigation required by the bylaws. Bylaws should have specific steps to deal with sexual harassment charges, and these steps for physicians should be similar to what other employees face.

Having this separate track for dealing with accused harassers who are physicians can put the fairness of its sexual harassment process into question. If physicians have greater chances of being exonerated than employees do, then other accused harassers might not trust the legitimacy of the process.

Hospitals can address this problem by trying to add standards to the bylaws of the medical staff that allow for immediate action against sexual harassers. However, physicians on staff have to approve such changes. In general, medical staff bylaws do not have these provisions.

However, a hospital may still be able to take action against the doctor "where the failure to take such action may result in an imminent danger to the health of any individual," under the Healthcare Quality Improvement Act (HCQIA). Citing the HCQIA, medical staffs have been able to immediately suspend a physician's privileges, without a preliminary hearing, even before a final decision is rendered.

Accused Doctors May Push Back

The medical staff's ultimate action against the doctor, such as a termination, can also meet with charges of unfair treatment based on medical staff bylaws. In addition, the doctor could file charges of slander, defamation, or tortious interference of business. Therefore, it is important to have an attorney review the finding and decision.

Doctors may push back hard because the stakes are high. When an adverse action is taken against a doctor's hospital privileges, it must be reported to the state medical board, which may then hold its own investigation and take action against the doctor's license to practice medicine.

In addition, victims may directly report sexual harassment to the medical board, and the board may then discipline the doctor.

In 2008, an Iowa doctor repeatedly asked a female subordinate to have an affair with him and threatened to "crush" her if she did not. He also asked another employee, in a jocular way, if she would leave her husband and have his baby. The state board disciplined him for this behavior, and the doctor challenged the decision. In 2013, the Iowa Supreme Court affirmed that the doctor's behavior was unethical, though some other charges were dropped.

Conducting the Investigation

Choose an experienced investigator. Too often, investigators of sexual harassment complaints are not adequately trained, even when they work in HR or the legal department. Investigators must be unbiased, understand the steps they need to take, and follow them precisely. It often makes sense to contract with independent contractors who have the experience to do this work.

Basic skills of an investigator. Investigators should understand sexual harassment law, know what they need to investigate, be proficient at interviewing witnesses, know how to weigh credibility and analyze information, and write a cogent report. There are training programs that teach these skills.

Some questions to ask. Is the accuser's story consistent? Is it plausible? Does the accuser have any motivation to make the story up? Is there corroboration from witnesses or other evidence? Are the witnesses biased, or have they been involved in questionable behavior in the past?

Writing the report. There should be a written report summarizing the allegations, the accused harasser's response, and the witness interviews. Carefully document statements and the steps taken to investigate the matter. The actual conclusion should be left up to a decision-maker within the organization.

Be aware of your bias. Investigators who have a personal relationship with the accused employee or the complainant should recuse themselves. This is why it's important to have trained several staff to function as investigators. In small practices where everyone knows each other, the only solution may be to hire an outside investigator.

Acting on the Findings

If investigators determine that the harassment took place, the main aim is to make sure that it stops.

Organizations sometimes state that they have a "zero tolerance" policy against sexual harassment, but it can be unclear what that means. Does it mean that every harasser will be terminated, even for minor infractions? If so, such a policy can actually harm enforcement. If employees believe that the harasser will automatically be terminated for even a minor offense, they would be less willing to come forward.

Serious cases, such as sexual assault or ongoing harassment, can lead to immediate termination. But in less serious cases, harassers may receive a suspension or a written warning in their file. Or harassers may have to make a commitment to stop their behavior in exchange for continued employment.

Employers should aim for consistent enforcement. If a mailroom clerk is fired for fondling another employee, so too should a highly renowned scientific researcher. Inconsistent enforcement means that victims will be reluctant to come forward when certain people are the harassers.

A system of progressive discipline ensures fairness. A first-time harasser who has committed a relatively minor offense, for example, might get a verbal warning and be required to get more training.

However, progressive discipline is not appropriate for more severe harassment, or pervasive harassment involving repeated sexual misconduct. Such behavior might require such actions as a demotion; reduced pay; or signing a "last chance" agreement, which states that if the harassment continues, the harasser will be fired.

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Susan Strauss, RN, EdD

| Disclosures | January 01, 2020

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Susan Strauss, RN, EdD

Strauss Consulting, Burnsville, Minnesota

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