Few would argue that sexual harassment should be tolerated in the workplace or elsewhere. But its incidence has been climbing nonetheless. From 1991 through 1998, workplace sexual discrimination and harassment complaints in the U.S. increased nearly 150%, from 18,000 to 42,000.
Many of these complaints were filed in an effort to right egregious wrongs. Unfortunately, a number of these actions were frivolous -- which seems particularly unfair to the real victims of sexual discrimination and harassment, whether they are employees or employers.
"We represented a defendant in a sexual harassment suit where the plaintiff said her supervisor had sexually harassed her. When asked during deposition what specific form this sexual harassment took, she stated that her supervisor had complimented her attire on a day when she knew she didn’t look good. So she knew he was sexually harassing her," said Janel Ortengren, an attorney with Tampa, FL-based law firm Akerman Senterfitt.
The lesson to take away from this anecdote, Ortengren said, is that management personnel can’t know what will or will not offend someone. So as a practical matter, an organization should have a zero-tolerance policy.
"Not only is the practice liable for harassment claims filed against it, as an administrator you may be personally liable for claims related to the harassment of others," she warned.
In a presentation at the 2003 American Healthcare Radiology Administrators imaging center administrator conference in Tampa, FL, Ortengren outlined four steps that radiology managers can take to avoid liability for harassment claims.
Policy
The first step an institution needs to take is to create a strong anti-harassment policy. This policy needs to be in writing and must condemn sexual harassment, specifically in the workplace, Ortengren said. It should note what conduct is proscribed and describe the discipline that will be imposed for violations of the policy.
"The proscribed conduct should include physical actions, such as touching; verbal actions, such as comments about body, clothes, and looks; and non-verbal actions, such as sexual gestures or displaying suggestive visuals like calendars and the like," she said.
It must contain a clear grievance procedure for reporting complaints of sexual harassment and should state clearly what employees should do if they have a complaint. It must also state that managers, supervisors, and third parties (such as vendors, patients, and service personnel) are prohibited from committing harassing behavior.
It should include alternative persons to whom employees may complain if they do not want to report an incident to their direct supervisor. The policy must also contain a "no retaliation" provision for an employee who submits a complaint of sexual harassment. Finally, an acknowledgement form must be part of the policy, demonstrating by each employee’s signature that all persons in a practice have been apprised of the anti-harassment policy.
Training
The second step a group needs to take to shield itself from harassment liability is to conduct anti-harassment training for both staff and management, Ortengren said.
Staff training should emphasize the company’s anti-harassment policy. It should define by example what sexual harassment is and what it is not. It also needs to cover reporting procedures for employees who have a sexual harassment complaint.
Management training should encompass the same elements as staff training but must also include the process for recognizing claims of sexual harassment, detail the investigative procedures that will need to be undertaken, and cover the disciplinary procedure. In addition, training should also emphasize actions by management that would be viewed as retaliation.
Investigation
The third step a practice can undertake to limit its liability to sexual harassment is to create a documented investigative procedure that will be followed when complaints are reported.
"There are six ingredients for a good investigation," Ortengren said, listing the employer's responsibilities:
- The investigation should be undertaken promptly
- The investigation should be thorough
- Confidentiality must be maintained
- The investigation should result in a determination, with appropriate action taken
- The employer should follow up with the employee who complained
- Everything should be documented
"You’re not legally obligated to document, you’re just in a much better position to defend yourself from liability if you do," she said.
Remedial action
The fourth and final step the organization can take to protect itself from liability is to take remedial action in response to a sexual harassment complaint.
"This can take the form of corrective counseling; an oral reprimand, written warning or suspension; a transfer, reassignment or demotion of the harasser; a transfer of the victim, if requested and if possible; or termination of the harasser," Ortengren said.
By Jonathan S. BatchelorAuntMinnie.com staff writer
November 7, 2003
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