Sexual Harassment in Healthcare in the #MeToo Era

Generally, an employer is not liable for harassment if the employer takes reasonable steps to discover and rectify incidences of sexual harassment within the workplace. In healthcare, this can mean harassment of or at the hands of either employees or patients. Conversely, employers are liable for sexual harassment when the employer does little or nothing to protect its employees from harassment.

Understanding Healthcare’s Sexual Harassment Crisis

#MeToo movement highlights healthcare industry’s deficiencies in sexual harassment prevention

The #MeToo Movement is a culmination of the sea of change in the way Americans understand, prevent, and penalize sexual harassment. Prior to #MeToo, the healthcare industry had the highest rate of sexual harassment claims levied against employers.  In the 2016 fiscal year, healthcare topped the list of industries for harassment claims brought by employees against employers, accounting for 14% of all claims made to the U.S. Equal Employment Opportunity Commission (EEOC). And in Illinois, specifically, a jury awarded a doctor $1 million in compensation after he was retaliated against for reporting sexual harassment. The jury found that the hospital where he worked had fired him in retaliation for his decision to report that a fellow attending physician was sexually harassing resident physicians.

Sexual harassment in healthcare tends to fall within five categories. These categories include sexual harassment of (in order of the rate of occurrence):

• An employee harasses a fellow employee.
• A supervisor harasses an employee.
• A patient harasses an employee.
• An employee harasses a patient.
• A patient harasses a fellow patient.

Illinois now requires healthcare providers to complete sexual harassment prevention training

The Illinois legislature anticipated increased litigation in the #MeToo era. On January 1, 2019, a new Illinois law took effect that requires all licensed professionals to complete one hour of sexual harassment prevention training before renewing their license.¹  

Even as this law begins to change providers’ sexual harassment IQ, Illinois healthcare employers should take immediate action to prevent sexual harassment incidents and prepare for any sexual harassment complaints.

What is sexual harassment?

In general, sexual harassment is unwelcome verbal or physical conduct that denigrates an individual on the basis of that person’s sex or gender. The Illinois Human Rights Act (IHR) defines sexual harassment for state employers and state contractors — a definition that’s useful even for those to whom it doesn’t apply. Under the IHR, sexual harassment is “any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature” when the conduct:

1. is a condition for employment;
2. affects decisions made about employment; or,
3. substantially interferes with an individual’s work performance by creating an intimidating, hostile, or offensive working environment.

Title VII defines sexual harassment for most healthcare employees

For other employees, sexual harassment claims fall under Title VII of the Civil Rights Act of 1964.  The U.S. Supreme Court defines sexual harassment as “discrimination based on sex [that] has created a hostile or abusive work environment,” and that “‘affects a term, condition, or privilege’ of employment within the meaning of Title VII.”²  The Supreme Court went on to hold that an employee must prove that the harassing conduct was both objectively and subjectively hostile or abusive. The Court wrote:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.³

Under both the IHR definition and the Supreme Court definition, harassment occurs if either: (1) a supervisor asks for a quid pro quo sexual favor in return for employment advantages, or (2) severe and pervasive behavior interferes with an individual’s work performance and creates a “hostile work environment.”

Type 1: Quid Pro Quo Harassment by Supervisors

Courts are quick to impose liability on employer if an employee presents credible evidence of quid pro quo harassment. Quid pro quo harassment means that a supervisor demands sexual favors in exchange for employment-related favors.  For example, if a supervisor offers an employee a promotion on the condition that she goes on a date with him, that is quid pro quo harassment.

Because an employee’s supervisor has the power to alter an employee’s terms of employment, the U.S. Supreme Court has made clear that quid pro quo harassment creates heightened liability for the employer.⁴

Type 2: Hostile Work Environments

A hostile work environment exists when the workplace is replete with discriminatory intimidation, ridicule, and insults that are sufficiently severe or pervasive as to alter the conditions of the victim’s employment.⁵  And it is important to know that an employee or supervisor can create a hostile work environment intentionally or as the result of unintentionally discriminatory behavior.

Harassment includes behaviors or actions that concern a person’s gender or sex and that interfere with that person’s work performance. It may include: epithets, slurs, negative stereotyping, threats, or hostile acts that relate to an individual’s sex or gender.  Additionally, written or graphic material that denigrates or shows hostility toward a person or group because of their sex or gender is considered harassment. Harassment does not necessarily require that the employee suffers adverse economic consequences.

Common complaints about sexual harassment include the following behaviors:

• Having sexually explicit materials such as pornography in the workplace.
• Comments about a person’s appearance or jokes of a sexual nature can constitute harassment if the comments are commonplace and pervasive.
• Asking a coworker for a date. By itself, this is not harassment. However, if the person refuses the offer, repeatedly asking for a date can constitute harassment.
• When a supervisor consistently demeans the ability of women to perform work and takes adverse actions to an employee because of her gender, such as not promoting a qualified woman.

While this list constitutes common complaints, sexual harassment can include a constellation of behaviors and actions that create a hostile work environment. 

Sexual Harassment by and of Patients

Patients can create liability for employers when they harass or when they are subjected to harassment. Patients who display behaviors that denigrate an employee because of her sex, or who acts in a crude or boorish manner, may leave an employer open to liability for creating a hostile work environment under Title VII.

Similarly, employees who sexually harass patients increase the employer’s liability. While the liability does not fall under Title VII, an employee’s behavior can create common law liability. This means that the courts have recognized that employers are responsible in these situations, even if the law doesn’t explicitly say so. This is especially true if the patient is in a vulnerable or compromised position.  In this scenario, the practice would likely be sued for negligence and negligent supervision.

An isolated episode of sexually inappropriate behavior by a customer against an employee is likely alone insufficient grounds for a hostile work environment claim. However, an employer could be liable for the sexual harassment of an employee by a patient if it is a common occurrence and the employer fails to protect its employees from problematic patients.

Employer Retaliation for Reporting Sexual Harassment

An employer is also potentially liable for sexual harassment if a supervisor retaliates against an employee for reporting sexual harassment. Title VII protects employees against retaliation for if they complain about sexual harassment. The statute makes it unlawful for an employer to discriminate against any of his employees or employment applicants because that person complained about an unlawful activity.⁶

An employee may establish a prima facie case of retaliation by presenting evidence that (1) the employee informed an employer of sexual harassment; (2) the employer took an adverse action against that employee; and (3) a causal connection exists between the events.⁷

It is important to note that the whistleblower claiming retaliation may not have been the person who was sexually harassed. Additionally, a whistleblower may claim retaliation any time an employer takes an adverse action against her after she complains about sexual harassment.  

How Employers Can Limit Liability for Harassment

The United States Court of Appeals for the Seventh Circuit has stated that, “the criterion for when an employer is liable for sexual harassment is negligence.”⁸ In other words, an employer is not liable for harassment if the employer takes reasonable steps to discover and rectify the harassment of employees.⁹ Conversely, employers are liable for sexual harassment when the employer does little or nothing to protect its employees from harassment.

Take steps to prevent sexual harassment in the workplace

Healthcare employers should take immediate steps protect against sexual harassment liability. Prudent employers:

1. Define and prohibit sexual harassment in their employee handbooks.
2. Impose strict penalties for sexual misconduct, and if discipline wasn’t possible, then record the reasons why.
3. Implement a clear reporting procedure for incidents of sexual harassment.
4. Educate employees and supervisors train employees and supervisors on sexual harassment prevention.
5. Train supervisors on ways to handle a problematic patients.
6. Actively protect employees from sexual harassers whether the harassers are employees or patients.
7. Promptly investigate allegations of sexual harassment and appropriately reprimand problematic employees.
8. Avoid making any changes to the employment of the person who was sexually harassed (i.e., transfer the harasser into a new department, but don’t transfer the victim).
9. Restore any job benefits that a supervisor withheld due to harassment.
10. Painstakingly document the investigation and the steps you took to remedy the situation.

Take steps to limit the practice’s liability

Further, employers must take all reports of sexual harassment seriously. To thoroughly protect against liability, employers need to:

1. Investigate all complaints;
2. Avoiding assuming that the person making the complaint is being oversensitive.
3. Don’t leave it to the parties involved to work it out.
4. Remember that not all employees will label unwelcome conduct as harassment. An employee might complain, for example, about “unprofessional conduct” or “inappropriate behavior.” Ask the employee to describe the conduct more specifically.

Call Jackson LLP’s Experienced Healthcare Business Attorneys

As litigation in the #MeToo era increases, healthcare providers are wise to take steps to prevent harassment, and swiftly handle problematic behaviors. 

Jackson LLP’s healthcare attorneys are experienced in implementing sexual harassment policies in medical offices and healthcare practices. Knowledgeable about the nuances in patient-provider relationships, our attorneys can establish your workplace employee policies and help reduce your liability for misconduct. To schedule a complimentary consultation with a healthcare business attorney, click the button below.

(1) Public Act 100-0762
(2) Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)
(3) Harris v. Forklift Sys., Inc., 510 U.S. 17, 20 (1993)
(4) Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
(5) See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986)
(6) Title VII, Section 704(a)
(7) See Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 642 (7th Cir. 2002)
(8) Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430-31 (7th Cir. 1995)
(9) Id.