The Harvey Weinstein Effect: The Healthcare Industry is Not Immune

Harvey Weinstein and the too-many-to-be-named members of the media, entertainment and political arenas have once again pushed the issue of sexual harassment to the forefront. The silver lining is they have reminded us how much more needs to be done in order to eliminate this scourge from the workplace. In our role as health care legal counsel, we at Frier Levitt can state the obvious: the health care profession is not immune to this affliction.

In order to protect employees and avoid detrimental effects on the workplace, while minimizing the potential for legal claims, each health care entity should assess its workplaces and develop written sexual harassment policies tailored to each individual practice. Health care entity employers should disseminate this policy to their employees and provide sexual harassment training, all while incorporating the policy into the employee manual and the practice’s overall compliance program.

Health care entity employers should also reexamine their sexual harassment policy at least annually, and revise it based on feedback and enforcement efforts. Doing so under the guidance of health care legal counsel has the added advantage of protecting communications through the attorney-client privilege.

The Necessity and Terms of a Written Policy

In order to prevent and minimize the threat of sexual harassment to employees while simultaneously minimizing the threat posed by legal claims against the employer, it is necessary to have a policy which both prohibits all forms of sexual harassment while additionally providing an enforcement mechanism. All health care entities should have such a policy prohibiting sexual harassment and subjecting employees to discipline – including termination – for violations of the policy. 

The policy should start by setting forth its purpose. It should make clear that sexual harassment is an assault on the dignity of a person, degrades the effectiveness and productivity of the workplace, and is unacceptable. Simply stated: Sexual harassment will not be tolerated by the employer. 

Next, the policy should clearly define sexual harassment. Broadly speaking, sexual harassment is a form of workplace discrimination that is characterized by unwelcome physical, verbal or other communicative conduct of a sexual nature. It reveals itself in advances, requests or hints for sexual favors, inappropriate comments and gestures, and in more extreme instances outright physical assault. It can take the form of “quid pro quo” or hostile work environment harassment, or a combination of both.

A strong definition of sexual harassment will describe the concept in detail, while additionally citing applicable federal and state laws that prohibit it. For example, the New Jersey Law Against Discrimination (LAD) prohibits all employers, regardless of size, from discriminating in employment based on sex, marital status, domestic partnership or civil union status, sexual orientation, or gender identity or expression. Sexual harassment is considered to be a form of unlawful discrimination. It is also a violation of the law to retaliate against any person exercising his or her rights under the law, or against any person aiding in the exercise of rights under the LAD.  N.J.S.A, 10:5-1 et seq. In addition to citing applicable law such as the LAD, the policy should also incorporate an addendum containing examples of sexual harassment that will be covered in more detail in the employers training sessions.

The linchpin of any effective policy is the prohibition of all forms of sexual harassment and the subjugation of employees to administrative discipline for any violations. Such an effective policy must make clear that this employee discipline is in addition to, and not in lieu of, any other lawful remedies such as the filing of criminal charges and/or civil lawsuits. It must also make clear that anyone in a supervisory capacity who condones or turns a “blind eye” to sexual harassment is complicit in such conduct and also subject to discipline. Retaliation against employees for bringing forth allegations of sexual harassment in good faith must also be strictly prohibited. 

Lastly, the policy must set forth an internal reporting/complaint process for victims as well non-victim observers or coworkers. It should also address employee and supervisor responsibilities in dealing with such incidents. 

Implementation    

Even the best written policy does no good if hard copies merely sit on a shelf and electronic copies reside somewhere in the office manager’s local drive. Such a “shelf policy” is as bad as, if not worse than, no policy at all, for it demonstrates employer indifference to a recognized threat. 

As such, an effective sexual harassment policy must be disseminated, and employees must sign off annually that they have reviewed and understand it. Leaving employees to read and fully understand an otherwise effective policy on their own is insufficient for successful implementation. Mandatory training with sign-in sheets must also be provided, and records of the training, such as a PowerPoint presentation and/or legal citations, should be saved and reexamined periodically for changes in the law or for policy-improvement purposes.

Enforcement efforts must be sincere. Complaints must be thoroughly and fairly vetted. Investigations should be neither a “whitewash” nor a “hanging court.” Resolution of the complaint – whether founded, unfounded or proofs insufficient to establish one or the other – must be made. Any resulting discipline and accommodations to the victim should be fair and commensurate with the violation as well as the totality of relevant circumstances. Written documentation of the resolution of the complaint must be made. 

Lastly, it should be noted that there is no substitute for executive action. As uncomfortable as this policing duty may be for an employer, had responsible executives properly carried out their responsibilities there would be far less victimization and far fewer newscasts dominated by episodes of sexual harassment. Practice owners, managing partners, office administrators and supervisors are on notice that the law places upon them the responsibility and duty to take reasonable measures to prevent workplace sexual harassment, and to properly deal with those instances that are brought to their attention. 

Conclusion   

The best mechanism to protect the dignity of your employees, to prevent the denigration of workplace effectiveness and productivity, and to protect against hostile work environment and other legal claims, is to have a written and “breathing” policy. By “breathing,” we mean a real policy – one that is clear, working, and enforced. In effect, a policy that “closes the loop” from assessment, to policy development, to dissemination and training, to operational implementation, to enforcement, to documentation and back to reassessment, is the best antidote.

Frier Levitt has advised health care entities on how to prevent workplace discrimination and sexual harassment, and we have also defended health care licensees in all forums – criminal, civil and administrative – against such charges. We have seen the pitfalls befalling practices, and we stand ready to utilize our experiences in developing policies and compliance programs, and in training and advising  managers and employees in dealing with this urgently topical and ongoing concern. Contact Frier Levitt to speak with an attorney to help implement these policies and compliance programs in your practice.

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