Sexual Harassment in a Healthcare Practice: What You Need to Know

In 2017, sexual harassment claims dominated news coverage and social media forums. Claims of sexual misconduct and harassment have certainly clouded — if not ended — the careers of once powerful and publicly respected celebrities, and the #MeToo movement has encouraged and empowered many ordinary people to come forward with their stories of being harassed and treated inappropriately. The healthcare field is not immune to claims of sexual harassment.

In fact, lawsuits have been successfully brought against well-known and well-represented corporate healthcare operations:

• A nurse is suing Cedars-Sinai for failing to prevent a surgeon from harassing her
• In 2012 a physician assistant who had worked at Mercy General Hospital in Sacramento successfully sued Catholic Healthcare West after being sexually harassed by a physician
• A dental assistant won her suit against UConn Health for not protecting her from a dentist’s ongoing sexual harassment

And harassment — including sexual harassment lawsuits — are not limited to staff interactions.¹ While the prevalence of patient harassment has not been well studied, anecdotal evidence from polls suggests that it’s not a trivial problem. One Medscape poll found that 27% of physicians experienced at least one incident of sexual harassment in just the previous three years. Another Medscape poll surveying recipients of NIH career development awards found that 47% of physicians and 71% of nurses have faced harassment by patients, including stalking, persistent attempts at communication, inappropriate social media contact and physical harassment. These results should serve as a warning for medical practices to take seriously the possibility of patient harassment of physicians and staff.

While these cases are tragic and difficult to hear about, they provide important lessons on ways you can protect against complaints of sexual harassment in a healthcare practice.

Prevention Is the Best Medicine

Physicians hear about cases involving corporate healthcare entities and may erroneously believe that sexual harassment in a healthcare practice happens only in that setting, but don’t believe sexual harassment is an issue for their smaller practices. The truth is that sexual harassment can occur anywhere, and all employers, such as large health systems or independently owned physician practices, bear legal responsibility for protecting employees from harassment and hostile work environments, whether between staff or between staff and patients.

Every physician practice should take steps to adopt appropriate policies and provide adequate resources for training, prevention and investigation of reports of harassment. These steps are not only important to comply with the law, but also to ensure a safe and respectful work environment for all.

Corporate healthcare operations with human resources departments often have a more structured and compliant system in place for educating new hires about the company’s no-harassment policies and procedures. They deliver periodic training to remind employees about maintaining a healthy workplace by eliminating workplace bullying, harassment and other forms of discrimination.

Even without the resources of larger practice groups, smaller physician practices should still make this type of ongoing workforce education as routine as state-mandated TB testing, pre-employment background checks or other precautions designed to protect employees, patients, and, ultimately, the entire practice. According to a recent, small-scale survey, Becker’s Hospital Review reports that 12% of healthcare practices don’t even have a sexual harassment policy.

Taking the right precautions can protect physician practices, their staff and patients from the life-changing impact of harassment.

Employment Discrimination and Sexual Harassment Law

A collection of federal laws prohibit employment discrimination and harassment based on race, color, religion, age, sex (including gender and pregnancy), disability, veteran status, genetic information, citizenship, or national origin. The U.S. Equal Employment Opportunity Commission (EEOC) is the entity responsible for interpreting and enforcing laws related to discriminatory employment practices within these protected categories.

While these laws generally apply to employers with 15 or more employees, smaller organizations may still be subject to state and local laws addressing these same topics and may face compensatory and punitive damages under these laws. As a result, it’s recommended that all employers implement effective policies, procedures and remedies after they have been drafted and approved by legal counsel with expertise in employment law.

The EEOC website gives a succinct outline of what does and does not constitute unlawful harassment, stipulates who harassers and victims may be, and specifies under what conditions employers are liable. Employer liability is often tied to the employer’s actions in preventing and correcting instances of harassment, except when a supervisor is the accused harasser; in this case the employer is automatically at fault unless it shows it took reasonable steps to prevent and correct the harassing behavior and the victim failed to avail themselves of those preventative and corrective opportunities.²

Maintaining a Harassment-Free Environment in a Healthcare Setting

Understanding and preventing sexual harassment in a healthcare setting can include challenges that other business sectors may not face. Most sexual harassment policies focus on employees and their interpersonal interactions, but the healthcare environment adds the element of patient and caregiver interactions that are also applicable under sexual harassment laws. Patients and their caregivers may be the harassers or victims of harassment.

In some cases, patients who have traumatic brain injuries, dementia, or who are confused or impaired for other reasons may lack appropriate self-control or awareness that results in inappropriate behavior toward healthcare staff. Employers remain responsible for protecting staff from harassment regardless of the patient’s condition.

A harassment suit filed several years ago by a hospital receptionist made many healthcare employers take note as the EEOC claimed the employer was legally liable since the supervisor and management failed to respond to the employee’s complaints despite ongoing interaction with a patient who was harassing her.³ The hospital system settled the suit with a payout of $30,000 — and the suit underscored the extent of employer liability.³

Keeping the complex personal interactions of a healthcare setting in mind while developing policies and participating in training sessions is crucial.

Accountability Begins with Executive Leadership

Patients interact with healthcare providers under some of the most emotionally-charged, intensely private and sensitive situations. Understandably, patients want to trust their providers explicitly and expect physicians and other healthcare providers to be ethical. The American Medical Association (AMA) acknowledges that fact and suggests that, as a group, “physicians should hold one another to high standards of conduct.”⁴

Accountability begins at the top, and any workplace culture is informed first by executive leadership. Physician practices are no exception; however, physicians may be reluctant to confront their business partners and may allow unethical or potentially damaging behavior to occur without fully understanding the potential risks — financial and professional — to the entire practice.

Rather than assuming that sexual harassment won’t happen in their own practices, physicians should be mindful that the AMA reports that “data on physician self-reported behavior and physician disciplinary actions, including the AMA’s own Council on Ethical and Judicial Affairs’ disciplinary function, suggests that maintaining professional boundaries remains a significant challenge for physicians in practice.”⁵ Among the EEOC’s recommendations to prevent harassment, “committed and engaged leadership” is at the top of the list. Ensuring that physician partners are committed to creating a work place that does not tolerate harassment is crucial and demands that physicians hold their colleagues accountable.

Tips and Resources for Developing and Maintaining a Policy

Compliance agency ComplyRight recommends a “good, better, best” sexual harassment prevention strategy. Developing a policy is good. Having the policy and providing training is better. Having a policy, providing training, and posting notices is the best strategy.⁶ Human resources and compliance professionals as well as the EEOC echo that strategy.

Seeking legal counsel and other appropriate expertise may also be necessary as the practice develops policies and procedures, but the good news is that there are a number of valuable resources that can help even small physician practices without in-house legal counsel and dedicated human resources staff.

Resources to help with these action items are readily available. Physician practices can find policy templates, training materials, and materials for posting in offices from many reputable online sources. A great place to start is the Society for Human Resource Management (SHRM). Some, but not all, SHRM resources require membership, but membership may be a worthwhile investment given the treasure trove of information SHRM offers, especially if your practice has a small HR staff. SHRM’s website has training tools and even a list of vendors who provide sexual harassment training and policy development. There are also local SHRM chapters who may offer a listing of locally-based resources available to employers, such as employment attorneys and trainers.

The EEOC itself recently launched a respectful workplaces training initiative and, for a fee, trainers will provide on-site, interactive sessions for groups of up to 35 employees. Other EEOC outreach and education programs are available on a limited basis at no cost to the employer. Professional organizations have also created training tools that physician practices may want to use, and these training tools typically offer continuing education units (CEUs) that licensed professionals must accrue annually. AMA offers a course on physician boundaries and the Code of Medical Ethics. Other professional associations and private companies such as RN.org have developed sexual harassment training materials specifically for the healthcare profession.

With the resources discussed above and the best practices included in the sidebar on this page, your practice can provide a safe and respectful work environment for all.

References

1. Frye, K. “Healthcare Employers Liable for Harassment by Patients, Not Just Employees.” November 15, 2012. Becker’s Hospital Review. (accessed 3/20/18)

2. U.S. Equal Employment Opportunity Commission. “Harassment.” (accessed 5/2/2018)

3. Ceglowski, K., Woodard, D. “EEOC Settlement Reminds Employers of Responsibility to Protect Employees from Harassment by Third Parties.” October 28, 2013. Lexology. (accessed 3/20/18)

4 . American Medical Association. “Code of Medical Ethics: Professional Self-Regulation.” (accessed 3/20/18)

5. American Medical Association. “Boundaries for Physicians: The Code of Medical Ethics.” (accessed 3/20/18)

6. ComplyRight. “3 Things to Do Today to Avoid a Harassment Lawsuit Tomorrow.” August 30, 2017. (accessed 3/20/18)

Additional Linked Sources

Ellison, Ayla. “Nurse Accuses Cedars-Sinai of Failing to Prevent Sexual Harassment by Surgeon.” Becker’s Hospital Review. 12/20/2017. (accessed 5/2/2017)

McCoy, Kevin. “Sexual Harassment: Here are Some of the Biggest Cases.” USA Today. 10/25/2017. (accessed 5/2/2018)

Frellick, Marcia. “Harassment from Patients Prevalent, Poll Shows.” Medscape. 2/1/2018 (accessed 5/2/2018)

Finnegan, Joanne. FierceHealthcare:

• “Survey: More than 1 in 4 Doctors Sexually Harassed by Patients.” 7/12/2018 (accessed 7/13/2018)
• “It happens Here, Too: Sexual Harassment Occurs in Healthcare Field.” 12/14/2017 (accessed 5/2/2018)
• “3 Ways Practices Can Protect Themselves Against Sexual Harassment Complaints.” 12/18/2017 (accessed 5/2/2018)

MacDonald, Ilene. “Sexual Abuse Scandals: What Hospitals Can Learn from High-Profile Hollywood, Government Cases of Harassment.” FierceHealthcare. 11/21/2017 (accessed 5/2/2018)

Gooch, Kelly. “12% Of Healthcare Practices Lack a Sexual Harassment Policy.” Becker’s Hospital Review. 12/15/2017. (accessed 5/2/2018)

U.S. Equal Employment Opportunity Commission:

• “Harassment” (accessed 5/2/2018)
• “Promising Practices for Preventing Harassment” (accessed 5/2/2018)
• “EEOC Launches New Training Program On Respectful Workplaces.” 10/4/2017. (accessed 5/2/2018) (accessed 5/2/2018)
• “Outreach, Education & Technical Assistance” (accessed 5/2/2018)

Society for Human Resource Management (SHRM):

• SHRM Homepage (accessed 5/2/2018)
• “Sexual Harassment” (accessed 5/2/2018)

AMA Education Center. “Boundaries for Physicians: The Code of Medical Ethics.” 4/6/2017. (accessed 5/2/2018)