Sexual harassment is a risk to your practice

The Supreme Court and the Equal Employment Opportunity Commission have provided reasonably clear definitions of sexual harassment. We say "reasonably" clear because each situation must still be interpreted in its' own context.

Sexual harassment can occur with any gender combination and with multiple harassers and/or multiple victims.

While male-harassing-female incidents account for most of the harassment and make the news more often, employers are equally liable for any of the four gender combinations.

Sexual harassment must be gender based. If someone is abusive to all sexes equally the abuse is not sexual harassment (bullying remains a problem in health care settings).

The conduct usually has to be deliberate, repeated, and unwelcome. A one time slip of the tongue, occasional bad manners, or accidentally offensive behavior is not sexual harassment. Again, this occasional behavior should concern management, but does not constitute sexual harassment under the law.

(Practice administrators should check on applicable state laws and every practice needs a qualified law firm on speed dial.)

So how do we define sexual harassment? There are two types.

Quid Pro Quo

Quid pro quo is Latin and roughly translates to "this for that."

In the context of sexual harassment it translates to "give me sex or else!"

"Or else" means what?

            no job

            no pay raise

            no promotion

            supervisory mistreatment

            other undeserved negative consequence, ...or...

            an undeserved positive result from cooperating with the harasser

This is the crudest type of sexual harassment. Despite our general rule on repetitive conduct, a single gross incident can qualify as harassment.  The intimidation factor may forestall timely reporting of this conduct, or the incident may become known throughout the practice, and there may be a need for immediate intervention.

The kindergarten rule applies – keep your hands to yourself.

Favoritism to an employee is a violation of the rights of non-favored employees. If a supervisor rewards those who submit to the harassment to the detriment of those who do not, those who did not submit have also been the victims of sexual harassment/discrimination.

This type of sexual harassment is vile, intrusive and intimidating, and is of a type that a jury can very clearly understand and is very much a power play, and can be subject to severe sanction.

Hostile Environment

Hostile environment harassment can be less blatant but more personal and just as damaging. This type of harassment occurs when persistent conduct is offensive to a "reasonable person," specifically the victim. If the alleged victim is female, the standard is the perceptions of a "reasonable woman."

A hostile environment is when the sexualized environment hurts concentration and productivity, causes personal embarrassment, interferes with normal working relationships, and is generally disruptive.

Hostile environment cases may not be reported from a single event, and the employer may receive numerous hints of the conduct before a formal report.

The U. S. Supreme Court has given some guidance on hostile environment. Key indicators are:

            1.         the frequency of the unwelcome conduct.

            2.         severity of the conduct.

            3.         was the conduct physically threatening?

            4.         was the conduct more than offensive, becoming humiliating?

            5.         did the conduct interfere with productivity?

            6.         did the conduct disrupt employment rights?

These issues have a side effect of pushing employers into dress codes and conduct codes, usually best expressed in an employee handbook. Uniform requirements can ameliorate some of the dress issues. Training should address both of these codes and organizational policies on sexual harassment.

Employees of either gender who cannot conduct themselves in a proper manner should be counseled about propriety in the work place (a practice administrator or physician executive should have a third party in the room when delivering such counseling). Vigilance and relentless attention to supervisory issues are the foundation of protecting the employees and the organization.