Workplace Harassment: Awareness and Prevention

It’s Chubb. Or it’s Chance.

Every health care organization struggles to keep abreast of the changing legal requirements associated with managing its most valued assets: its employees. These “human resources” bring technical and professional expertise that adds value to the organization, but they can also bring problematic behaviors that create liability exposures. One serious exposure is discriminatory harassment in work-related situations. Aside from the risk of potential litigation, an allegation of workplace harassment can have serious consequences to business reputation and reputation as an employer in the community at large. Harassment allegations may create workplace stress and disharmony and decrease an employer’s ability to retain excellent employees. Furthermore, tolerating improper behavior is morally and legally objectionable. An employer may face workplace harassment allegations more often than necessary if its training programs, its employment policies, and its investigations of employee complaints are ineffective. Awareness of the laws relating to sexual and other forms of workplace harassment, and implementation of employment practices that are consistent with these requirements, may help prevent claims and will almost certainly mitigate damages in litigation. The purpose of this brochure, which is not legal advice but is merely advisory in nature, is to help health care workers understand sexual and other forms of workplace harassment by presenting explanations and guidelines, as well as pre- and post-tests to test individual knowledge. The brochure offers risk management strategies that may be integrated with a facility’s prevention program. When people are treated differently because of their gender or other protected statuses (such as race, religion, age, disability, etc.), they are victims of discrimination. Harassment on one of these bases in an employment context is a form of employment discrimination and is prohibited by law. Unlawful harassment can be physical, verbal, or nonverbal, and it can occur in the form of communications, correspondence, images, and behaviors. Persons of either sex may be subjected to sexual harassment. Work-related harassment can occur not only in the workplace, but also in nonworkplace settings. Non-workplace scenarios may include business-related travel, business dinners, conferences, office parties, and company-sponsored sporting events.

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Pretest Test your knowledge of workplace harassment (True or False?): ____ An action constitutes sexual harassment only when physical touching occurs during a sexual advance. ____ Laws against harassment do not apply to email messages, calendars, cartoons, or jokes posted in an employee’s personal workspace. ____ Laws against harassment apply only to the conduct of employees and supervisors and not to the conduct of patients, contractors, or other third parties. ____ It is best to wait a week or two before investigating harassment complaints to allow the alleged victim’s anger to dissipate and opinions to change, and to give the alleged harasser a chance to change his or her behavior voluntarily. ____ Ann’s supervisor pats her on the buttocks. His actions make her uncomfortable. She does not tell him this makes her uncomfortable and does not ask him to stop. Because of Ann’s inaction, her supervisor has not created a hostile work environment. ____ Sexual harassment is unlawful, but the harassment laws don’t apply to harassment on the basis of race, age, religion, or disability. Were all of your quiz responses false? If so, congratulations—you have a basic understanding of potential workplace harassment situations. Regardless of how well you did, read on to broaden your knowledge. Legal Overview Title VII of the Civil Rights Act of 19641 makes it illegal to discriminate on the basis of race, color, religion, age, national origin, and sex. Title VII prohibits employers from discriminating on the basis of any of these bases with respect to compensation, benefits, and other terms of employment. There was a long lag between the signing of Title VII and the first cases recognizing that workplace harassment was a form of unlawful employment discrimination. Remedies for victims of harassment were initially limited to back pay and job reinstatement as necessary. Workers often endured the behavior, reported it and suffered retaliation, or opposed it and were placed back in the same position. 2

Congress expanded remedies in the Civil Rights Act of 1991. Victims of discriminatory harassment may now recover compensatory damages beyond back pay and losses subject to remedy may now include future monetary losses, pain and suffering, loss of enjoyment of life, and even punitive damages if a plaintiff can demonstrate that an employer acted with malice or with reckless indifference. In 1991, the Senate Judiciary Committee’s hearings into Anita Hill’s allegations against Supreme Court nominee Clarence Thomas focused further public attention on the continuing problem of sexual harassment in the workplace. Supreme Court decisions in 1998 expanded employer liability for discriminatory harassment but also offered guidelines for creating affirmative defenses, which this brochure will discuss. A Supreme Court decision in 1999 provided further incentive for employers to implement effective anti-discrimination policies. All employers should now have strong, effective policies prohibiting harassment in the workplace. Many workplace policies contain the definition of sexual harassment taken directly from Equal Employment Opportunity Commission (EEOC) regulations which state: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 1.

submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

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submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

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such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”2

Federal law recognizes two separate legal grounds of employer liability for harassment under Title VII of the Civil Rights Act.3 One form of liability results when harassment culminates in a tangible employment action, such as dismissal, denial of promotion, or demotion. This kind of liability, which typically arises only in cases of sexual harassment, often is called quid pro quo (loosely translated, “this for that”), a Latin phrase describing the situation whereby a harassing supervisor would obtain sexual favors from a subordinate in exchange for giving the subordinate a job benefit. The other 3

form of liability, which may or may not involve sexual demands, results when the discriminatory harassment permitted by the employer has been severe or pervasive enough to create a hostile work environment. Tangible Employment Action When harassment has culminated in a tangible employment action (as it often does in quid pro quo cases, such as where the subordinate is fired for resisting sexual advances), the employer is automatically liable. This liability results even if the employer had no knowledge of the harassing supervisor’s improper conduct. In this kind of case the employer is responsible because its supervisor is acting for the employer in triggering the tangible employment action. Hostile Work Environment Hostile work environment cases may be more complex than cases involving a tangible employment action. For one thing, a hostile environment need not result from the actions of a supervisor, but rather may involve the conduct of coworkers or third parties, such as vendors or customers. Second, a hostile environment often does not involve a single event, but typically involves multiple incidents over time (although an isolated incident that is severe enough may itself create a hostile environment). In order for a hostile environment claim to succeed, five criteria must be met: 1.

The conduct is unwelcome.

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The conduct is based on a protected status (such as gender, race, religion, age, or disability).

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The conduct is so severe or so pervasive that the claimant believes it has altered the terms of employment.

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The conduct is so severe or so pervasive that a reasonable person in the claimant’s position would also believe that the conduct has altered the terms of employment.

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The employer knew or should have known of the conduct and failed to correct it, or the harasser was an employee so senior as to be operating with the full authority of the employer.

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The proof that the unwelcome conduct was based on a protected status can consist of either direct or circumstantial evidence. Sometimes the discriminatory motive for the harassment is obvious, as where, for example, an employee screams a racial slur at another employee. In other cases, the hostile behavior is not inherently discriminatory, but is directed in a discriminatory way, as where, for example, the male incumbents in a particular job resent a woman entering the work force and sabotage her work in an effort to drive her off the job. For this reason, in a case of sexual harassment, behaviors other than sexual conduct can constitute sexual harassment. In examining whether conduct is sufficiently serious to create a hostile environment, courts consider these factors: 1.

the frequency of the conduct,

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its severity (whether the conduct is physically threatening or humiliating or a mere offensive utterance), and

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whether the conduct unreasonably interferes with work performance.

Remarks directed at a particular person, such as name-calling, derogatory jokes, and hazing may be seen as harassing behaviors. General workplace culture is also a concern, even when a particular individual is not targeted. Examples of behavior constituting sexual harassment include the display of sexually graphic materials, the dissemination of sexually based correspondence, sexual propositions or sexual touching, extremely vulgar or degrading language or nicknames, obscene graffiti or cartoons, embarrassing questions or jokes, and outrageous or intimidating conduct. Recent Case Law In 1998, the Supreme Court decided two important cases that involved harassment by supervisors rather than coworkers and that addressed the responsibility of the employer for the supervisor’s conduct. In Burlington Industries v. Ellerth4 and Faragher v. City of Boca Raton,5 the Court changed the focus for review of supervisor harassment. Rather than determining whether the case is a quid pro quo or a hostile environment matter, the Court said the emphasis should be placed on whether an employee suffered an injury that had a tangible effect on employment, such as a demotion, termination, or salary change. In these situations, an employer is 5

automatically liable regardless of what type of harassment is claimed. The Court also provided for an affirmative defense in hostile environment cases to avoid automatic liability. The employer must prove: 1.

that the employer exercised reasonable care to prevent and address concerns about workplace harassment, and

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that the employee unreasonably failed to take advantage of any opportunities offered by the employer to prevent or correct the problem.

Employers must use these guidelines to create effective corporate policies against workplace harassment. In 1999, the Supreme Court decided another important case, Kolstad v. American Dental Association,6 which resulted in both bad news and good news for employers. The bad news was that an employer in an employment discrimination case can be liable for punitive damages, not only where the discriminatory conduct was “egregious or outrageous,” but also where the employer has acted or failed to act in conscious disregard of employees’ rights. Cases since Kolstad have applied this principle to uphold very large punitive damages awards against employers who failed to respond effectively to complaints of workplace harassment. The good news in Kolstad was the Court’s decision to create an affirmative defense against punitive damages for employers who have instituted anti-discrimination policies in good faith: “[I]n the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s “good-faith” efforts to comply with Title VII.”7 Cases since Kolstad have emphasized, in this context, the importance of having an effective anti-harassment policy disseminated to all employees and of training employees on avoidance of workplace harassment Policy Development Employers must be alert to the impact of corporate culture on individual employees and should take steps to create and maintain a culture that is

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unbiased and respectful of the dignity of all employees. Two such steps might be to: (1) involve employees in key decisions about conduct at and away from the office and (2) create a good-faith policy with the following components: I

A strong prohibition on workplace harassment that is sex-based or that involves discrimination based on religious beliefs, race, age, disability, national origin, and any other statuses (e.g., sexual orientation) that are protected in the jurisdiction in which the employer does business.

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A process for reporting, investigation, and remediation.

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A process for reporting to management outside the employee’s chain of command when necessary.

Policy Provisions The EEOC recommends these important policy elements: I

A clear definition of harassment.

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A clear definition of behaviors that constitute harassment and are prohibited.

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A provision that protects employees who make harassment complaints or provide information related to such complaints from retaliation.

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A clearly defined reporting and complaint process that is accessible to all parties.

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A prompt, thorough, and impartial investigation of complaints.

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A process for intermediate interventions that protect all parties pending completion of an investigation (such as schedule changes or transfers).

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A provision that protects information during a pending investigation.

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A process for education that provides ongoing training of all employees on the company’s policy and addresses specific issues for new training as they arise.

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A commitment to immediate corrective action once harassment is determined to have occurred.

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A clearly defined appeal process.

Accountability The responsibilities of a supervisor are paramount and should be understood by all employees. First and foremost, supervisors must treat employees fairly and respectfully. Second, supervisors are role models who demonstrate exemplary or, at least, acceptable behavior, and report deviations from company policy when necessary. Third, supervisors must be alert to potentially harassing behavior and take immediate action to stop the behavior. Risk Management Recommendations 1.

Publicize your harassment policy. Make certain the policy is provided to all employees. Publish key components in the employee handbook and place them on employee bulletin boards. Have employees acknowledge receipt of the policy in writing, and complete an annual review.

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Educate your workforce. Make sure that employees understand the reporting process, as well as the policy. Educate managers on response to possible harassment situations and to employee complaints.

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Develop effective complaint procedures. Designate a specific individual to receive reports. Provide an alternate person who is easily accessible to all employees if the primary person is not available. Make the process simple and direct so it is easily understood by all employees.

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Treat all reports seriously. Conduct a prompt investigation. Interview all parties. Take action to eliminate the behavior as warranted. If intermediate steps, such as temporary reassignment, are needed, use them.

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Monitor federal and state laws and relevant court decisions. Consult your attorneys for assistance in revising policies, initiating investigations, maintaining the confidentiality of the parties, documenting the investigative process, and taking disciplinary action. 8

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Enforce your policy in an even-handed manner. Treat complaints against executive management in the same way as you would complaints against lower level employees.

Management Loss Prevention Strategies Help Prevent Workplace Harassment by Enhancing Communication. I

Develop a corporate culture that respects a diverse employee group.

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Develop standards of behavior appropriate to show respect for your employees’ religious, cultural, ethnic, and racial backgrounds. Do not tolerate mistreatment based on any protected status.

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Provide educational programs that help managers recognize and respond to harassment situations.

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Post federal and state guidelines on workplace harassment where all employees can read them.

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Encourage employees to report any sign of workplace harassment immediately.

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Make third-party suppliers and customers aware of your workplace harassment policy.

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Have a strong, widely disseminated policy.

Begin Building Your Affirmative Defense with Reasonable Complaint and Investigation Procedures. I

Ensure managers are accountable for modeling good behavior.

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Provide easy access for reporting.

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Take prompt action on all complaints.

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Investigate! Develop a standard protocol for your investigations. For example, determine: • Who is the alleged harasser? • What happened? • When did it happen and where did it take place? 9

• Who witnessed the incidents? • Was the behavior part of a continuing pattern or an isolated event? • What was the employee’s reaction? • How did the event affect job performance? • Did the employee discuss the concerns with anyone else in the company? • How have the events affected the employee personally or emotionally? • Is there any objective evidence of the alleged harassment, such as an audiotape, videotape, email, letter, or photo? I

Document investigative activities clearly and thoroughly. Obtain originals of any tapes or correspondence and make copies for the complainant. Prepare a summary of the interview(s) to be signed by the witness. Pursue all avenues that may lead to discovery of whether harassment took place. If the alleged harasser indicates the complainant has a motive to lie (such as poor work evaluations), explore it fully. Also, elicit all versions of events, especially with regard to whether the behavior was “unwelcome.”

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Remain neutral and conduct the investigation fairly. Do not prejudge the matter. Ask open-ended questions. Provide as little information as possible about the alleged harassment to witnesses. Document the appearance, gestures, and expressions of interviewees during the process. Document the accuracy of their recollection of events. Assess the credibility of all participants. When making a final determination, base it on the facts, any evidence provided, and the credibility of the information from all parties.

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Be careful, however, not to reach conclusions that prejudge questions of legal liability. Employers can and should make decisions to discipline employees for inappropriate conduct without necessarily concluding that the employee’s conduct was a violation of law. Policies against workplace harassment are triggered at levels of conduct that are much lower than the legal threshold.

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Safeguard the privacy of all parties to the extent possible. Do not guarantee confidentiality; rather, assure that there is no retaliation for reporting or for participating in the investigation.

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Promptly and honestly communicate the results of the investigation to the complainant and the alleged harasser. Do not, however, disclose unnecessary details. For example, although it is important to advise the complainant that appropriate action has been taken, it is not necessary and it may be inadvisable to share all the details of the discipline that was imposed.

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Intervene to eliminate misconduct. When an infraction is committed, use reasonable disciplinary action consistent with the offense. Potential corrective actions might include: • Oral or written warning or reprimand • Demotion • Suspension • Retraining and/or counseling to ensure that the harasser understands what behavior is acceptable and the consequences if behavior does not improve • Monitoring the harasser’s behavior to avert repeat offenses and to reinforce training • Discharge for egregious offense(s)

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If the complainant, the alleged harasser, or a witness refuses to cooperate in the investigation without having a personal attorney present, consult your own legal counsel to help one consider various options: (a) acquiescing in the request, (b) denying the request and insisting on cooperation to the point of imposing discipline, (c) having your own counsel attend the interview, or (d) foregoing the interview and making a conclusion without the benefit of the interview.

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Whenever in doubt, consult your legal counsel for direction in the investigation.

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Notify your insurance carrier of all potential claims.

Steps to Help Prevent New Claims of Harassment I

Use your own incidents as a learning tool to review reasonableness and efficacy of your procedures.

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Review and update your workplace harassment policy periodically to be certain it accurately states the corporate position.

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Reinforce, retrain, and communicate policy changes.

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Reeducate as warranted by specific incidents, but maintain privacy and confidentiality.

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Enforce the policy with consistency across the organization.

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Regularly reinforce and retrain those who are conducting investigations so that they can be as consistent and fair as possible.

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Train all your employees (not just managers and supervisors) on how to prevent and report workplace harassment.

Conclusion Workplace harassment is a substantial risk for all employers. Employers in health care organizations are at particular risk for sexual harassment claims, as these claims historically have occurred in the context of unequal power and physicians and administrators (which have been historically maledominated) hold actual or perceived power over the larger group of female nurses and other employees in supporting health care roles. It is thus important to understand your risk, assess your culture, and prohibit all types of discriminatory behavior. A comprehensive anti-harassment policy and excellent documentation of your investigation and response to incidents or reports of possible harassment may help prevent large compensatory and punitive damage awards. All health care employers should have ongoing education that supports their “zero tolerance” policy.

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1 42 U.S.C. § 2000e. 2 29 C.F.R. § 1604.11(a). 3 42 U.S.C. § 2000e-2(a)(1). 4 524 U.S. 742 (1998). In Ellerth, a female salesperson quit her job after 15 months claiming constant sexual harassment by a supervisor. The supervisor made repeated offensive gestures and boorish remarks. Ellerth suffered no tangible job detriment and even received a promotion while employed at Burlington Industries. 5 524 U.S. 775 (1998). In Faragher, a female lifeguard for the city quit her job and claimed that two of her immediate supervisors had created a “sexually hostile atmosphere” by using lewd language and constant offensive touching. Faragher resigned her position before suing the supervisors and the City of Boca Raton. 6 527 U.S. 526 (1999). 7 Id. at 545.

Acknowledgement This brochure was prepared with the assistance of employment law experts at the national law firm of Seyfarth Shaw. The law firm represents management in all aspects of employment litigation and counseling. Its affiliate, Seyfarth Shaw at Work (877-828-8683), provides comprehensive training on a variety of employment law topics, including harassment prevention, workplace investigations, and managing within the law.

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WORKPLACE HARASSMENT QUIZ Choose only one best answer for each question: 1.

All of the following incidents might lead to allegations of sexual harassment except: A. A group of female nurses looking at calendar pictures of nude men inside the medication room. B. It is common knowledge throughout the hospital that the male doctor’s lounge has “pinups” on the walls and on the mirrors. C. A coworker of the opposite sex has asked you out to lunch. D. You have caught a coworker of the opposite sex suggestively looking you over several times.

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Dr. Smucker, a surgeon, was speechless when human resources (HR) told him he was involved in a sexual harassment claim. In reviewing past events, the only situation he could remember was hugging and rubbing scrub nurse Judy’s shoulders several times; but she never complained. HR plans to investigate the allegation. What education should the HR representative provide Dr. Smucker? A. Examples of acceptable behaviors. B. A person may not outwardly ask you to stop, but that does not mean your touches are welcome. C. A victim of harassment is not legally bound to tell a harasser to stop. D. All of the above.

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Several agency nurses have been providing coverage for vacationing staff in the Emergency Department. Shortly after beginning their assignments, their comments and remarks toward Greg (an EMT) became sexual in nature, offensive, and unwelcome. A potential consequence of their behaviors would be: A. The temporary agency might be liable for negligence. B. The hospital could be held legally liable if management knew or should have known this was happening, but did not take steps reasonably calculated to end the harassment. C. Greg’s condition of employment could be adversely affected. D. All of the above.

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Which of the following can create a hostile work environment? A. Coworkers B. Patients C. Vendors D. All of the above

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Jesse had been working in the peri-operative area for one year when the clinical director position became available. The application process required he interview with the medical director. Jesse is qualified for the position but the medical director tells him she will consider recommending him for the position only if they became “better friends.” Jesse declines the proposal and does not get the job. This is an example of what type of harassment? A. Harassment culminating in a tangible employment action (quid pro quo) B. Hostile work environment harassment C. Verbal sexual harassment D. Sexual discrimination harassment

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Which of the following may create a hostile work environment? A. An environment filled with verbal or nonverbal behaviors that are unwelcome and pervasive. B. Obscene jokes and nude photographs routed to everyone via email. C. A supervisor basing promotional decisions based on the employee’s willingness to grant or deny sexual favors. D. An employee giving another employee an unwanted hug. E. All of the above

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Employees who file workplace harassment claims are predominantly seeking: A. Attention B. Revenge C. A stop to the wrongful behavior D. Financial gain

1. (C), 2. (D), 3. (D), 4. (D), 5. (A), 6. (E), 7. (C) Answer Key:

C H U B B H E A LT H C A R E Chubb Group of Insurance Companies 82 Hopmeadow Street Post Office Box 2002 Simsbury, CT 06070-7683 Phone: 800.432.8168 • Fax: 860.408.2002 Web site: http://csi.chubb.com Email: [email protected]

This guide is advisory in nature. It is offered as a resource to be used together with your professional insurance and legal advisors in developing a loss control program. This guide is necessarily general in content and intended to serve as an overview of certain aspects of employment law in the United States. It should not be relied upon as legal advice or a definitive statement of law in any jurisdiction. For such advice an applicant, insured or other reader should consult their own legal counsel. No liability is assumed by reason of the information this document contains. Form 14-01-0617 (Ed. 12/2002)