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4 ways to address the #MeToo era in health care
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In the first entry to our Healio Legal Perspectives resource center, experts from Epstein Becker and Green discuss how to inoculate a health care practice against the realities of sexual harassment in the health care sector.
by Frank C. Morris Jr., Jonathan Hoerner, Katie Smith
The #MeToo movement has its roots in Hollywood and the entertainment industry, but its branches extend into myriad other industries including journalism, the financial sector, government, athletics, tech, academia, and even the federal judiciary. The health care sector is no exception, despite its guiding principle to “first do no harm.”
Studies assert that sexual harassment is pervasive in the health care space. An academic medical faculty study published in 2016 found approximately 30% of female physicians surveyed reported having personally experienced sexual harassment by a superior or colleague, compared with 4% of men. Statistics from the Equal Employment Opportunity Commission (EEOC) indicate that at least 3,085 employees at general medical and surgical hospitals filed sexual harassment claims between 1995 and 2016 (or about 147 per year).
Some of these sex harassment claims turned out to be very costly for employers. In September 2013, a dental assistant at the University of Connecticut Health Center sued her employer claiming gender discrimination and a hostile work environment under Title VII of the Civil Rights Act of 1964. A jury found in her favor on March 30, 2017, awarding her $200,000, although the court later reduced the award to $125,000. Though damages in Title VII claims are capped, plaintiffs may also bring claims under state or local laws, which provide for greater damages.
In 2016, an Illinois jury awarded Brett Ohlfs, MD, $1 million, finding that defendant Advocate Christ Medical Center had fired him in retaliation for his reports that a fellow attending physician was harassing female resident physicians. And in 2012, a California physician’s assistant won one of the largest sexual harassment verdicts ever awarded to a single plaintiff. A jury awarded Ani Chopourian $168 million ($125 million in punitive damages alone, with $39 million for mental anguish) on a combination of state and federal claims after she alleged that doctors at Sacramento’s Mercy General Hospital sexually harassed and tormented her for nearly 2 years. Chopourian claimed she was fired after filing approximately 18 written complaints concerning harassment in the work environment. The judge later reduced the award to $82 million, and the parties ultimately reached a confidential settlement.
Health care is particularly at risk for claims of sexual harassment: boundaries of appropriate speech and conduct may be blurred in an industry where people see and discuss bodies and body parts and functions all day every day, and employees are often required to work in close proximity with physical contact. Further, the hierarchical nature of many medical institutions may simultaneously empower would-be harassers while discouraging victims from reporting due to fear of adverse consequences after raising concerns. The power dynamic is exacerbated by a gender imbalance wherein 66% of physicians are male, and 83% of nurses are female. Employees may also experience sexual harassment by patients and their family members as well as by third party vendors and non-employee service providers who are contracted with the health care entity.
As employers in every sector grapple with how to prevent and address sexual misconduct allegations, health care employers in particular should keep in mind the following to reduce their risk.
Act vigilantly
As the saying goes, “an ounce of prevention is worth a pound of cure.” Thus, health care employers should implement training, policies, and procedures to define and prohibit sexual harassment as well as prohibit retaliation against anyone making a complaint. The policies and procedures should be written in a way that employees can understand what constitutes sexual harassment and what conduct is prohibited.
Given recent events, the training can properly instruct that engaging in sexual harassment can be a career death sentence as Kevin Spacey, Harvey Weinstein, Al Franken, and many others can attest. Training should be done on an ongoing basis and senior management should show strong, visible support so that the training is taken seriously by all employees and managers. A direct message from the President, CEO, or Chief Medical Officer and personal participation in a training session can be effective in this regard. As a best practice, health care employers should keep documentation of the training and attendance. Such documentation can prove very valuable in fending off any claims. Our experience today is that appropriate training should be given to Boards of Directors as well.
Additionally, health care employers should structure the work environment to minimize risky situations and ambiguity regarding the physician-patient vs. employer-employee relationship. For example, employers should have appropriate guidelines when employees become patients of the practice. To guard against sexual harassment involving patients, health care providers should also consider requiring a same-sex third party be present in the examining room while a provider performs a personally invasive examination or treatment in a sensitive area (eg, pelvic and breast exams), documenting the third party’s involvement through routine charting practices. There is much to be learned from the long running sexual assaults of Larry Nassar, former physician associated with the USA Gymnastics team.
Health care employers should maintain contact and proactively check-in with employees working in remote or isolated environments to ensure that the lack of day-to-day observation does not enable inappropriate behavior. This is an especially important step given recent case law that reinforces the idea that employers may be held liable for misbehavior about which they were unaware, if they should have discovered it.
Quickly address complaints
Training and policies serve as an important first line of defense against sexual harassment; however, they cannot eliminate all risk for sexual harassment. Health care employers should establish multiple channels through which employees (and patients) can report harassment complaints. Moreover, employers can reassure those who make complaints by acting quickly to investigate and address all reported claims. As the court in MacCluskey v. UConn spelled out, it is not enough to simply maintain policies prohibiting sexual harassment; health care entities must also take reasonable care to enforce their policies. This means demonstrating that every claim is taken seriously and reasonably investigated. In doing so, employers must hold all employees to the same standard, without making exceptions for “high performing” or revenue generating employees, or well-known and popular physicians. Again, employers should think of Larry Nassar. Indeed, Nassar’s former supervisor and former dean of the Michigan State University College of Osteopathic Medicine was recently arrested allegedly for failure to adequately monitor Nassar after prior complaints as well as for his own alleged inappropriate actions.
Ignoring potential sexual harassment issues does not make those issues go away. Old, unresolved claims can resurface at any time. This can create liability for individuals and their employers, including punitive damage exposure, despite intervening months or years. It can also create extremely negative publicity for the health care entity regardless of whether the old, unresolved claims have legal merit.
Document misconduct
Health care employers should document all sexual harassment complaints and the results of their ensuing investigations, as well as any resulting disciplinary decisions. This critically important history serves as a guidepost for interpreting any future allegations. For example, a single instance of an individual reporting feeling uncomfortable from an employee’s behavior becomes more serious when the harasser continues to engage in the inappropriate behavior despite being counseled about such behavior. Additionally, this helps ensure that this critical information and institutional knowledge survives changes in supervisory and management personnel over time.
Lack of documentation and communication became one of the central issues in the MacCluskey v. UConn Health case, where an employee accused of sexual harassment was subject to a “last chance agreement” about which successive supervisors seemed to have limited, if any, knowledge. Thus, when the employee later continued to engage in harassing behavior — which by the terms of the agreement should have precipitated his immediate termination — hospital leadership failed to terminate the employee and allowed the inappropriate behavior to persist. Had the hospital better communicated the existence of the agreement and its terms, it might have avoided the liability associated with MacCluskey’s claims.
Comply with health care -specific obligations
In addition to responsibilities incumbent upon all employers to guard against sexual harassment, health care employers must ensure that they are aware of and compliant with privacy-related and reporting obligations that are unique to the health care industry, including under HIPAA.
In closing, it is important to recognize how sexual harassment affects the bottom line. As with many other aspects of a dysfunctional work environment, sexual harassment that affects employees can, in turn, compromise quality of care and patient safety. Therefore, to ensure top-notch patient care in an era where health care scorecards are increasingly being used and publicized, health care employers must remain engaged in assuring the safety and integrity of their work environments, including by all reasonable steps to prevent sex harassment.
References:
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Morris FC, Jr, et al. Second circuit decision in sexual harassment case shows heightened risk for health care employers. Epstein Becker & Green HEAL Act Now Advisory. Jan. 24, 2018. https://www.ebglaw.com/news/second-circuit-decision-in-sexual-harassment-case-shows-heightened-risk-for-health-care-employers/.
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For more information:
Frank C. Morris Jr., is a member of the firm in the Litigation and Employee Benefits practices, in the Washington, D.C., office of Epstein Becker Green. He co-chairs the firm’s ADA and Public Accommodations Group. He can be reached at fmorris@ebglaw.com.
Jonathan K. Hoerner is an associate in the Health Care and Life Sciences practice in the Washington, D.C., office of Epstein Becker Green. He can be reached at jhoerner@ebglaw.com.
Katherine “Katie” Smith is an associate in the Employment, Labor & Workforce Management practice in the Washington, D.C., office of Epstein Becker Green. She can be reached at kcsmith@ebglaw.com.