December 1998 Bulletin

Sexual harassment cases increasing

Physicians can avoid risk of lawsuits with policy that includes seven elements

Sexual harassment cases are on the rise. Consider the statistics: In 1997, the Equal Employment Opportunity Commission reported 15,889 charges of sexual harassment. That was more than twice the number of charges filed in 1991 and almost four times the number of charges filed in 1981.

Physicians are not immune to charges of sexual harassment. For example, in one recently reported federal case in Texas, a group of cardiothoracic surgeons was sued by a former employee who claimed that one of the physicians had harassed her by offensive touching and by making sexual overtures. In that case, the physicians prevailed because, after the employee complained, the practice's Director of Human Resources promptly instituted both a specific sexual harassment policy and sexual harassment training for the doctors.

Shortly after the Texas case was decided, the United States Supreme Court made the importance of a sexual harassment policy even clearer. In two landmark cases decided in June 1998, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, female employees claimed they had been sexually harassed by supervisors who created a "hostile work environment" that included unwelcome sexual advances, uninvited and offensive touching and lewd comments.

In those cases the Supreme Court for the first time announced that employers could be held liable for the conduct of supervisors whose conduct created a "hostile work environment" even though no tangible employment action had been taken and even though the employer was unaware of the harassing conduct.

These June 1998 decisions are of great significance to employers because the rule announced there makes all employers, including physician employers, at increased risk for sexual harassment lawsuits. There is some hope for employers, however. In those same decisions, the Supreme Court told employers how they may avoid this liability- institute a written sexual harassment policy.

In fashioning a sexual harassment policy, there are a number of elements that must be included to protect an employer. These include a:

To insure employer protection, each of these seven elements must be drafted to comply with a variety of legal and practical requirements. For example, as part of the complaint procedure, employees should be required to promptly report sexually harassing conduct they experience, learn of or witness. This is necessary because under the Faragher/ Ellerth decisions, an employee's failure to use a complaint procedure assists an employer in avoiding liability. Prompt reporting also may allow the employer to eliminate the unlawful harassment at an early stage and reduce or eliminate any resulting harm.

Further, a sexual harassment policy must provide alternative avenues of complaint. This is essential so that employees are not forced to complain either to the harasser or someone who is unsympathetic. Ideally, because employees may be more comfortable reporting a complaint to someone of their own sex, people of both sexes should be designated as complaint takers. Likewise, employees should not be required to put their complaints in writing because this may discourage some employees from voicing their complaints.

These are just a few of the nuances that must be considered in creating a sexual harassment policy. There are many more. While physician employers are strongly encouraged to implement such policies, they also are encouraged to consult with an attorney before putting a sexual harassment policy into place.

Susan G. Feibus is an attorney at Harris Kessler & Goldstein. She can be reached

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