Sexual Harassment: Prevention Is the Best Defense
Preston, Susan Harrington, Medical Economics
Even if a staffer takes you to court, you'll probably prevail if you had an anti-harassment program in place.
he old saw that prevention is better than cure goes double for sexual harassment liability in the workplace: In court, prevention is cure.
The US Supreme Court said as much last June. In a case known as Burlington Industries vs. Ellerth, the Court declared that an employer named in a sexual harassment suit must show evidence that he "exercised reasonable care to prevent and correct promptly any sexually harassing behavior. . . and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Although the ruling applied to a narrow slice of sexual harassment law, its lesson is valid for virtually any case.
In fact, these two legs of a harassment defense helped a Texas practice walk away from a lawsuit in April 1998. In that case, a former secretary sued a multisite surgery group, citing harassment by one of the surgeons.
In January 1995, the secretary told the group's director of human resources that the doctor had been harassing her for about four years. Until then, the group had had only a general statement against sexual harassment in its employee handbook. The human resources director quickly instituted a more specific policy, and the groups doctors attended sexual harassment training.
After investigating the complaint, the group offered the secretary a comparable position at a different site, saying that her old boss would not see patients there. She declined, quit, and later sued both the doctor and the practice in federal court.
The trial judge threw out the suit, stating that the practice "took prompt remedial action to prevent any future harassment. This factor alone is fatal to [the] claim."
Prompt action and preventive measures are also your best defense if an employee files a complaint with the US Equal Employment Opportunity Commission or with an EEOClinked state or local agency (see box below). "It's a point in your favor if you have a written policy in place," notes Fred DeVall of Healthcare Consulting Associates of Kalamazoo, MI.
Whether it's a civil lawsuit or an EEOC action, the employer is responsible for protecting staffers from offensive conduct in the workplace. It doesn't matter whether the offender is a doctor or patient or outside vendor. Federal laws apply only to companies with 15 or more employees, but state laws often cover the rest.
The laws are strict: You're liable if you should have known-even if you were unaware that harassment was occurring. That's a particular challenge to doctors, many of whom aren't even sure what sexual harassment is. "Pinches and the occasional pat on the fanny may well be construed as harassment;' DeVall remarks. "And some doctors, particularly older doctors, still do those things today"
To prevent even a claim of misconduct, it's worth the effort to learn what constitutes sexual harassment. "A doctor cannot be in business when he has this kind of thing hanging over his head," says T. Hensley Williams, a management consultant based in Des Moines. "Even if an accusation isn't true, it needs to be addressed."
Sexual harassment suits can be expensive. Your professional liability insurance probably doesn't cover sexual harassment litigation costs or settlements. Williams notes that harassment cases increasingly must be covered under a separate employment practices liability (EPLI) policy. With EPLI policies, the insurer pays your costs only if you've managed your business responsibly.
How, then, can you protect yourself? By taking the following steps:
Put a policy in place. A written policy forbidding sexual harassment is a must. Templates are available from many sources, including lawyers, consultants, the Medical Group Management Association, and human resources organizations. …