Avoiding sexual harassment lawsuits

By Frankie Jo Pacilla, Esq

Physician practice groups must not lose sight of the fact that they are employers, as well as health care providers, and as employers they are legally responsible for providing their employees with a work environment free from sexual and other legally protected forms of harassment.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces Title VII of the Civil Rights Act of 1964, which is the federal law that prohibits sexual harassment in the workplace. The regulations issued by the EEOC on sexual harassment provide that “[a]n employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.”

As these regulations indicate, the EEOC expects employers to affirmatively act to prevent harassment. Adopting an effective written harassment policy, and then educating and training your employees and supervisors on how to utilize and enforce the policy, can help you meet the expectations of the EEOC, and your legal responsibility to keep your workplace free from harassment.

Most employers today have adopted some form of a written policy against sexual harassment. (If your practice group does not have a written sexual harassment policy, you should make adopting one a high priority.) This is partially the result of key decisions issued by the United States Supreme Court in the late 1990s holding employers strictly liable for certain incidents of sexual harassment, and partially the result of a number of highly publicized sexual harassment million dollar jury verdicts. In fact, you may be reading this article and thinking to yourself, “we already have a written harassment policy in place so our group is adequately protected.” Having some form of a written harassment policy in place is certainly a good first step, but if it is outdated and ineffective it may be providing your practice group with very little legal protection and a false sense of security.

Experience demonstrates that, despite the large number of employers that have put written harassment policies in place, employees continue to sue employers for harassment in ever increasing number. The focus of the employee’s lawsuit is no longer that the employer failed to have a policy in place, but instead it is on the inadequacies of the written policy and the failure of the employer to properly educate their employees and supervisors on how to utilize and enforce the policy effectively. For instance, courts recently have held that employers failed to exercise reasonable care to prevent harassment where their harassment policies were ineffective for:

· Lacking assurances against non-retaliation.

· Lacking alternative complaint reporting mechanisms.

· Lacking assurances that confidentiality would be provided to the extent possible.

Courts have further found that employers have failed to exercise reasonable care to prevent harassment where their employees and supervisors were not properly educated and trained on their roles under the policy. Such examples were found where the evidence indicated that:

· Employees were not given their own copy of the harassment policy but instead were made to share with supervisors.

· Employees were asked to read and sign the harassment policy but were given no additional instruction concerning the content.

· Supervisor was unaware of the existence of the harassment policy although employees had a copy of the policy.

· Supervisors were not instructed on how to take the complaint and on the process for conducting an investigation.

Based on the developing caselaw and the EEOC’s regulations it is readily apparent that the employer of today, in order to provide itself with the greatest level of protection in preventing and/or defending a sexual harassment lawsuit, needs to provide both a detailed effective written harassment policy and education and training on the policy. Without full dissemination and comprehension of the harassment policy, along with the perception that the employer takes the policy seriously and will follow its rules, caselaw demonstrates that an employer will continue to risk liability and punitive damages.

The inclusion of the following factors in your harassment policy will make your policy less vulnerable to attack as being ineffective.

Policy should include a legal definition of harassment.

Policy should include a statement that all forms of harassment protected by law is prohibited, including harassment related to race, national origin, disability, age, gender, veteran status and citizenship status.

Policy should provide practical examples of behavior that would be considered violations.

Policy should prohibit any level of harassment including; physician, shareholder, director, CEO, owner, etc.

Policy should make it clear that hostile work environment harassment is not limited to supervisors and co-workers. Depending on the circumstance, the employer may be liable for the harassment of its employees by a non-employee such as a hospital employee, a patient, a vendor, etc.

Policy should outline responsibilities, i.e. obligation of employer to investigate and employees to report.

Policy should provide a complaint process that provides prompt, thorough and impartial investigation.

Policy should provide that violators will be disciplined appropriately, up to and including discharge.

Policy should assure that the complaint will be kept as confidential as possible (subject to the need to investigate). Policy should not promise complete confidentiality.

Policy should provide several alternative methods to complain which encourage employees to come forward.

Policy should assure that employees who make complaints of harassment or provide information related to such a complaint will be protected against retaliation.

Policy should provide for a prompt and thorough corrective action once a harassment complaint has been reported.

Policy should require employees to acknowledge receipt of the policy and agree to abide by its terms.

Policy should be translated or communicated to all employees in their primary language.

The employer that implements the following training, educational steps and procedures will be providing their practice group with a greater level of legal protection against harassment claims:

Post the policy where employees congregate – bulletin boards, lunch/break rooms, time clock area, etc.

Distribute the policy to all employees and periodically review it with them. Acknowledgement forms confirming receipt of the policy, their understanding of the policy and their agreement to report harassment and/or retaliation should be obtained from each employee and placed in the employee’s personnel file.

Supervisors should verbally communicate the policy at periodic supervisor and employee meetings, stressing each individual’s responsibility for not engaging in prohibited behavior and for reporting inappropriate behavior.

Supervisors should cover the policy in detail during new employee orientation and should encourage questions to ensure their understanding and acceptance of the policy.

Conduct yearly training to all employees. This includes upper-level employees. This training should be focused on your policy with practical examples and guidance. Four major areas to cover in training are:

· Identify prohibited conduct.

· The complaint reporting procedure.

· No retaliation.

· The supervisor’s/manager’s role.

Attendance forms should be collected from all employees attending training and should be kept in the employee’s personnel file.

Taking these proactive steps will not only help to protect your practice group from costly litigation, but will also improve the overall environment of your workplace by hopefully preventing harassment from ever taking place.

Frankie Jo Pacilla, Esq., is a Senior Attorney in the law firm of Houston Harbaugh, P.C. located in Pittsburgh, Pa.