After Hollywood film producer Harvey Weinstein was accused of widespread sexual harassment by a growing number of women beginning last fall, the phrase “Weinstein Effect” was coined to describe the increasing number of women speaking out to name and shame those who are alleged to be workplace sexual harassers. Additionally, the Weinstein Effect has ignited a firestorm of social media opposition to sexual harassment that is fueling the #MeToo campaign of empowerment for victims of sexual harassment and abuse. Since last fall, the #MeToo movement has expanded well beyond the glitz and glam of Hollywood and the entertainment industry as employers across the country, private and public, come to grips with the reality of sexual harassment in the workplace.
Many employers are already experiencing a significant increase in sexual harassment reports, and the medical/healthcare industry will assuredly be impacted as well. Unfortunately, given the nature of work in the healthcare environment, the heightened scrutiny associated with the Weinstein Effect will present unique and difficult challenges for these employers.
The General Prohibition Against Workplace Sexual Harassment
Workplace sexual harassment is prohibited by a federal law known as “Title VII of the Civil Rights Act of 1964”, usually referred to as “Title VII.” Generally speaking, Title VII makes it unlawful for employers to harass job applicants or employees on account of their gender. Decades ago, Title VII’s broad prohibition against gender discrimination was interpreted by the courts as also including sexual harassment. And prohibited sexual harassment is not limited to overt sexual advances. Rather, unlawful sexual harassment can include all sorts of other inappropriate conduct, such as offensive comments (written or verbal), as well as visual and graphic materials.
The U.S. Supreme Court has identified two distinct categories of sexual harassment. The first is called quid pro quo sexual harassment, which includes unwelcome sexual advances, requests for sexual favors, or physical or verbal conduct of a sexual nature that is tied directly or implicitly to the victim’s employment. The second form of sexual harassment is called hostile work environment. This occurs when inappropriate behavior is so severe and/or pervasive that it infects the workplace and interferes with the victim’s ability to perform the job.
The Equal Employment Opportunity Commission (“EEOC”—the federal agency that enforces Title VII) reports that approximately 30 percent of all workplace discrimination charges filed with it include allegations of discrimination based on gender. While not all gender discrimination charges involve claims of sexual harassment, as a result of the #MeToo movement and the Weinstein Effect, employers should expect reports of such misconduct to increase sharply during 2018 and beyond.
In a national poll conducted by Quinnipiac University, both men and women (88 percent and 89 percent respectively) reported that sexual harassment of women is a serious problem. The same study revealed that 60 percent of working American women reported belief that they had been sexually harassed at some time in their lives, with 69 percent of such incidents being alleged to have occurred at work. Furthermore, in a survey conducted by Morning Consult and reported by The New York Times, 25 percent of men admitted engaging in sexually harassing behavior at work during the past year.
According to a study conducted by the Center for American Progress which analyzed EEOC discrimination charges, the healthcare industry ranks fourth in the number of reported claims of sexual harassment, with only retail, food services, and manufacturing having greater numbers. In fact, more than 3,000 employees at medical and surgical hospitals filed sexual harassment charges with the EEOC between 1995 and 2016. Likewise, a JAMA study last year reported that nearly one-third of women associated with academic medical faculties reported the experience of being sexually harassed in the workplace.
These recent statistics—coupled with current national focus on the prevention and elimination of workplace sexual harassment—reinforces the importance to healthcare employers of diligence and urgency when dealing with reports of sexual harassment.
The Difficult Nature of Sexual Harassment in the Healthcare Industry
According to recent data from the Bureau of Labor Statistics, 78.5 percent of all hospital employees are women. Since women lodge the vast majority of sexual harassment claims and reports, as a matter of numbers alone the healthcare environment is vulnerable. In addition, there are inherent characteristics associated with the healthcare industry that make such employers even more susceptible to sexual harassment claims.
First, many employees in healthcare spend the majority of their work time in close physical proximity with others, unlike workers in many other industries. And for some healthcare workers (like those performing direct patient care), physical contact with others is a daily part of doing the job. In addition, many healthcare employees have unusual work schedules and/or may perform employment duties with coworkers for extended periods of time. As a result, the workplace can become too casual, with some employees at times feeling overly familiar with coworkers. In these circumstances, employees may make remarks or engage in behavior they would not otherwise if in a different setting or under other circumstances.
Another area of concern is that some healthcare workplaces involve an inherent imbalance of power. For instance, physicians frequently have significant control over other medical personnel when directing patient care. But such differences of power, whether real or perceived, can provide a fertile ground for sexual harassment claims, particularly in situations where employees have not received proper training regarding prevention and/or reporting of inappropriate workplace conduct.
Furthermore, employees in healthcare are commonly exposed to non-employee third parties, including physicians working as independent contractors, as well as vendors, patients, and guests. In these settings, employers may be held liable for third-party harassment by non-employees, including the actions of patients. EEOC regulations specifically state that: “an employer may be held liable for the actions of non-employees, with respect to harassment of employees in the workplace, where the employer knew of or should have known of the conduct and fails to take immediate and appropriate corrective action.”
In a study conducted regarding physical therapists, approximately 80 percent of female therapists surveyed reported that they had experienced sexual harassment, and the harassment was most common (400 percent more likely) between a female physical therapist and a male patient. Likewise, in a University of Missouri study, 21 of 29 surveyed nurses said that patients had subjected them to sexual harassment.
As noted, not everyone working in healthcare environments will necessarily be employed by the same company. For example, physicians frequently work as independent contractors, and are not actually employed by the hospitals at which they treat patients or provide other services. Similarly, in some healthcare facilities, various employees, including pharmacists, nurses, and doctors, may all be employed by different employers. This structure, uncommon in most other industries, creates further challenges for healthcare employers who work hard to prevent sexual harassment. This is because they may lack direct and meaningful control over the activities of potentially harassing third parties. In such situations, employees may feel discouraged from reporting harassment by a non-employee, because they fear it will have little or no ameliorative effect.
What You Can Do to Prevent Sexual Harassment
All employers—healthcare and otherwise—must implement heightened scrutiny to prevent sexual harassment. Among the many compelling reasons for doing so is that all employees deserve a work environment that is free from unlawful discrimination and improper conduct. Moreover, sexual harassment claims can be extremely expensive to defend and circumstantially frustrating, often bringing with them allegations of assault, battery, negligence, and retaliation. While the Weinstein Effect and #MeToo movement continue to receive increased media exposure, healthcare employers should take proactive steps now to prevent sexual harassment and provide employees with opportunities to address their concerns.
For those employers taking a proactive approach to this rapidly changing landscape, the work begins with reviewing your policies to ensure compliance with applicable state and federal anti-discrimination and fair employment practice laws. Also consider conducting refresher training for all employees regarding your company’s anti-discrimination and anti-harassment policies. This should include meaningful information concerning the obligation and manner of reporting improper conduct. Employees should be specifically informed that all workplace sexual harassment is prohibited, including actions of non-employee third parties such as patients and guests. Be willing to investigate complaints, even if they involve a high-profile physician. Furthermore, supervisors should be specifically trained about how to respond to harassment complaints. Finally, be aware that while women make the majority of sexual harassment complaints, reports from men should be treated with equal diligence.
Michael V. Abcarian is the managing partner of the Dallas office of Fisher Phillips, a national labor and employment law firm.