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.
1
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,
2.
submission to or rejection of such conduct by an individual is used as
the basis for employment decisions affecting such individual, or
3.
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.
2.
The conduct is based on a protected status (such as gender, race,
religion, age, or disability).
3.
The conduct is so severe or so pervasive that the claimant believes it
has altered the terms of employment.
4.
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.
5.
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.
4
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,
2.
its severity (whether the conduct is physically threatening or
humiliating or a mere offensive utterance), and
3.
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
2.
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
6
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.
I
A process for reporting, investigation, and remediation.
I
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.
I
A clear definition of behaviors that constitute harassment and are
prohibited.
I
A provision that protects employees who make harassment complaints
or provide information related to such complaints from retaliation.
I
A clearly defined reporting and complaint process that is accessible to
all parties.
I
A prompt, thorough, and impartial investigation of complaints.
I
A process for intermediate interventions that protect all parties
pending completion of an investigation (such as schedule changes or
transfers).
I
A provision that protects information during a pending investigation.
I
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.
7
I
A commitment to immediate corrective action once harassment is
determined to have occurred.
I
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.
2.
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.
3.
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.
4.
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.
5.
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
6.
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.
I
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.
I
Provide educational programs that help managers recognize and
respond to harassment situations.
I
Post federal and state guidelines on workplace harassment where all
employees can read them.
I
Encourage employees to report any sign of workplace harassment
immediately.
I
Make third-party suppliers and customers aware of your workplace
harassment policy.
I
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.
I
Provide easy access for reporting.
I
Take prompt action on all complaints.
I
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.”
I
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.
I
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.
10
I
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.
I
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.
I
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)
I
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.
11
I
Whenever in doubt, consult your legal counsel for direction in the
investigation.
I
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.
I
Review and update your workplace harassment policy periodically to
be certain it accurately states the corporate position.
I
Reinforce, retrain, and communicate policy changes.
I
Reeducate as warranted by specific incidents, but maintain privacy
and confidentiality.
I
Enforce the policy with consistency across the organization.
I
Regularly reinforce and retrain those who are conducting
investigations so that they can be as consistent and fair as possible.
I
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.
12
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.
13
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.
2.
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.
3.
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.
4.
Which of the following can create a hostile work environment?
A. Coworkers
B. Patients
C. Vendors
D. All of the above
5.
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
6.
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
7.
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)