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How to handle a complaint of sexual harassment by staff
Recent cases raise awareness of manager's role
[Editor's note: This issue of Same-Day Surgery features a special focus on sexual harassment, bullying, and other intimidating behavior. In terms of sexual harassment, we focus on recent cases among ambulatory staff and what lessons are to be learned. In our stories on bullying and intimidating behavior, we focus on accreditation requirements as well as practical solutions developed by health care providers.]
A pain center holds a holiday party. Afterward, while the group is waiting for a limousine ride to a nightclub, a receptionist claims one of the physicians patted her read end. At the club, the physician forcefully grabbed her, injuring her arm, to try to get her to dance with him, then screamed when she refused, she says. She filed a police report. The receptionist says she was afraid to return to work afterward and notified her supervisor several times. When she did return a few days later after the physician left for a trip, she was fired for failing to show up for work. She claims she was sexually harassed and has sued the center.
In another case, a surgical tech claims that an anesthesiologist showed up a work visibly intoxicated and referred to the tech as his boyfriend. The tech says the doctor asked if he could kiss him, and then kissed him even after he refused. The anesthesiologist also fondled him and made remarks that were vulgar, the tech claims. He said he reported the incident to supervisors, and nothing was done. A sexual harassment lawsuit is being field against the surgery center and the anesthesia group.
"Assuming the assertions of improper conduct are true, both cases illustrate how physicians can exploit their organizational power and authority to engage in unwanted and inappropriate behavior," says Paul B. Hofmann, DrPH, FACHE, president of the Hofmann Healthcare Group in Moraga, CA, which consults on ethical issues in health care and specializes in performance improvement efforts. "Furthermore, if evidence is presented that management knew or should have known that either of these physicians exhibited a previous pattern of unacceptable behavior and such conduct was permitted, then their organizations will have significant legal exposure."
Such incidents might not be isolated. In Fiscal Year 2009, there were 12,696 sexual harassment cases filed with the Equal Employment Opportunity Commission.1 Complaints in health care settings seem to be more common than in other environments, says Elizabeth G. Russell, JD, partner at Kreig DeVault in Indianapolis, IN. "There seems to be more sexual banter in that environment," Russell says. "I think it's just because they deal with bodies all the time, they get desensitized to it. It's much more prevalent than in the office setting."
Simply having a policy might not be sufficient to stop sexual harassment, Hofmann says. "Some victims feel so intimidated and vulnerable that they are reluctant to notify their supervisor, another member of management, or the human resources department, particularly when they fear retaliation and/or lack confidence in obtaining a prompt and appropriate response," he says.
There is strict liability for employers if there is adverse employment action as a result of sex harassment by a supervisor to a subordinate, according to Russell. "The question is did the employer know or was it so patently obviously that the employer should have known," she says. If all middle managers know, and no one told the decision makers, that situation puts the facility at risk, Russell says. "That's why it is so important to educate your managers about what is and isn't sexual harassment, and they need to report anything that they think constitutes sex harassment so employers can investigate and help remediate the situation."
Employers are also responsible for the actions of non-employees, such as consultants, contractors, or vendors, who harass employees if the employer or its supervisors knew or should have known of the conduct and failed to take immediate corrective action, Russell says. "Employers are responsible for providing a harassment-free work environment," she says.
How do you stop if from starting?
Provide zero tolerance for sexual harassment by engaging your employees, advises Col. Keith Essen, RN, MSN, MSS, deputy commander of nursing at Madigan Army Medical Center in Tacoma, WA. Essen spoke on disruptive staff at the recent annual Congress of the Association of periOperative Registered Nurses (AORN).
For example, consider an employee who tells a joke that's not conspicuously bad, but it sets the wrong tone, Essen says. "If [the manager] ignores it, that give tacit approval for that behavior to persist, and all of sudden it can go up to the next notch," he says.
Managers also must establish and implement appropriate policies and procedures to facilitate the timely reporting of unacceptable behavior, including provisions that encourage such reporting without fear of retribution, Hofmann says. Essen agrees. "You must have a system that allows a person to go against the power gradient," he says.
Managers also must conduct periodic educational programs to ensure that all staff members are aware of what constitutes sexual harassment and how to address it, Hoffman says.
Essen agrees and adds, "if you don't educate, if you don't perpetually intervene, you don't get the drift that goes into disaster."
Education itself is a form of intervention, Essen maintains. "It enlightens people," he says. "They have to be sensitized, and resensitized, and resensitized, to keep people focused and vigilant. That's the key thing."
Take all allegations of sexual harassment seriously and support immediate and fair investigations of these complaints, Hofmann advises. Don't dismiss complaints by taking the accused party's word without an investigation, Russell agrees. "A lot of people think, where there's smoke, there's fire," she says. If you're receiving a number of complaints about a member of your staff, investigate even if there are no witnesses, she says.
Also, deal promptly with the findings of any investigation, Hofmann says. The safety of your staff, and your patients, might depend on it, Essen says. "Dealing with the milieu of health care, anything that corrodes or suppress communication ultimately becomes a danger to the patient," he says. [A copy of a sexual harassment policy is available. For assistance, contact customer services at (800) 688-2421 or firstname.lastname@example.org.]
What behavior is sexual harassment?
There are two types of sexual harassment.
One is quid pro quo, which typically involves a supervisor or a subordinate. "In this case, 'if you do this sexual favor for me, I will advance your career,'" says Elizabeth G. Russell, JD, partner with Kreig DeVault, Indianapolis, IN. Alternatively, it can be a situation in which "I will do something to hurt your career" if you don't participate, Russell says.
The other situation is a hostile work environment, which is much more common, Russell says. "It's an environment where an employee feels so uncomfortable in performing her job that because of actions or attitudes taken toward her, it interferes with her ability to do her job," she says. Such actions can include Internet communication, texting, and forwarding or posting intimidating jokes, photos, or stories, sources say.
Sexual harassment can be caused by a male or female, Russell says.
Sexual harassment is not stray remarks or an occasional off-color joke, Russell says. "Those don't rise to the level of sexual harassment," she says. It has to be pervasive, and it has to be repetitive, Russell says. "I think the courts recognize that there may be some horse play, some joking that may be offensive to some, but it doesn't rise to level of interfering with someone's ability to do the job."
Any touching, however, is much more likely to be defined as sexual harassment, Russell says.