In the #MeToo era, how can hospitals prevent harassment and discrimination?

A Law Review Q&A

Workplace sexual harassment has a long history in health care. A 1994 report found that 70% of female staff nurses reported sexual harassment by patients or coworkers. In 2016, a JAMA study found that nearly one-third of women in academic medical faculties reported having experienced workplace sexual harassment. And it's not limited to females. Discrimination and harassment have inflicted all types of health care professionals and occurred across health care facilities.

Your cheat sheets for understanding health care's legal landscape

Over the last few months, as more allegations of workplace sexual harassment have come to the fore, providers have asked Advisory Board for best practices regarding implementation and enforcement of anti-discrimination, and in particular anti-sexual harassment, policies.

To learn more about the challenges health care employers face in this space and how they can overcome them, we sat down with Dan Levy, a Partner at Epstein Becker Green.

Q: What legal statutes govern workplace discrimination? Who's responsible for enforcing them?

Dan Levy: There are several federal laws that govern workplace discrimination. Among the major ones are:

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, color, sex, religion, or national origin. Sexual harassment is considered a form of sex discrimination;
  • The Age Discrimination in Employment Act of 1967 (ADEA), which prohibits discrimination against employees 40 years of age or older;
  • The Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with a disability;
  • The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work for the same employer from sex-based wage discrimination; and
  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing federal employment discrimination laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.

A few additional laws are also important to know about. The federal Family and Medical Leave Act (FMLA) provides certain protections to eligible employees for specified family and medical reasons and prohibits retaliation against employees who take qualified FMLA leave. Also, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects eligible employees who leave their job to serve in the uniformed service from discrimination or retaliation. The United States Department of Labor (DOL) administers and enforces the FMLA and USERRA.

In addition to federal laws, many states have enacted their own anti-discrimination statutes, and some of those laws provide additional protections to employees. For example, in addition to state laws prohibiting discrimination/harassment in the workplace, many states have enacted "whistleblower" laws that prohibit employers from retaliating against employees who allege that the employer has violated law or engaged in other misconduct. Health care employers should be particularly aware of whistleblower laws, if any, in their particular state.

Q: What legal obligations do health care employers have to prevent and eliminate workplace discrimination?

Levy: Like any other employer, hospitals and other health care employers have an obligation to provide their employees with a workplace that is free from discrimination, harassment, and retaliation. Employers' obligations related to claims of harassment, discrimination, or retaliation begin long before an employee makes an allegation of wrongful conduct.

Health care employers should ensure that their equal employment opportunity (EEO) policies cover all of the Title VII, ADEA, ADA, EPA, GINA, FMLA, USERRA, and applicable state law protections, and that all employees are aware of what constitutes discrimination/harassment.

Hospitals and health care employers also have a responsibility to protect against third-party sexual harassment. The EEOC has long maintained that employers may be liable under Title VII for sexual harassment of employees by business associates. Under EEOC guidelines, the focus is on whether the harassment occurred in the workplace (or logical extensions of the workplace, such as during work-related business trips). Responsibility for the acts of non-employees arises when the employer knew, or should have known, of the objectionable conduct and fails to take prompt and appropriate corrective action. As hospitals think about broadening their clinical networks, we recommend they include adequate anti-discrimination and anti-harassment clauses into their contracts.

Moreover, though harassment by patients is not always protected by employment discrimination laws, providers must nevertheless prepare for these events because they undoubtedly affect employee engagement and workplace culture.  Reports of harassment by patients have increased in the past several years. Hospitals and health care employers should, therefore, establish a policy that addresses harassment by patients and protocols to enforce that policy. 

Finally, though tangentially related, it's important for providers to be aware of anti-discrimination protections afforded to patients. Recently, DOL and HHS implemented regulations protecting LGBT patients from discrimination.

Q: How important is leadership and culture in eliminating workplace discrimination?

Levy: An organization's leadership and culture is critical. Executive management should model appropriate behavior. As stated in a 2016 report by the EEOC, "workplace culture has the greatest impact on allowing harassment to flourish or conversely in preventing harassment." According to the EEOC, an organization's culture is determined by:

  • Top executive leaders; and
  • Whether employees are accountable for fostering a "diverse, inclusive and respectful workplace."

Q: In your experience, what are best practices for preventing workplace discrimination?

Levy: Prevention is the best tool to eliminate workplace discrimination/harassment. Employers should model respectful behavior and take appropriate steps to prevent and correct unlawful discrimination/harassment. To that end, employers should clearly communicate to employees that unwelcome discriminatory or harassing conduct will not be tolerated.

A respectful workplace is key to preventing discrimination and harassment. This can be accomplished through various methods, including, as discussed in more detail below:

  • Establishing and implementing workplace policies;
  • Establishing an effective complaint or grievance process;
  • Supporting anti-harassment policies with necessary resources, including time and money for investigations and frequent training of managers and employees;
  • Taking immediate and appropriate action in response to an employee complaint; and
  • Ensuring there is no retaliation against those who complain or participate in an investigation.

Workplace policies. Anti-discrimination policies lay the foundation for a respectful and inclusive workplace. First and foremost, health care employers should develop and implement a comprehensive workplace policy addressing discrimination, harassment, and retaliation. A policy should generally include:

  • A clear explanation of prohibited conduct, including examples;
  • Clear assurances that employees who make complaints or provide information related to complaints, witnesses, and others who participate in the investigation will be protected against retaliation;
  • A clearly described complaint process that provides multiple, accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation;
  • Assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred, and respond appropriately to behavior that may not be legally actionable "harassment" but which, left unchecked, may lead to same; and
  • A clear statement that harassment on the basis of any protected characteristic will not be tolerated. The policy should be written in clear, simple words and in all languages used in the workplace.

Complaint or grievance process. Employers should complement their anti-discrimination policies with a reporting procedure that allows employees to report instances where they perceive that they are the subject of improper conduct. In its 2016 report, the EEOC emphasized the need for an "accessible and well-running reporting system" that communicates to employees the leadership's commitment to the organization's anti-harassment policy. A reporting system should ensure that employees who receive harassment complaints take the complaints seriously and provide timely responses and investigations. In addition, employees should feel that they are safe to express their views; that investigators are well-trained, objective and neutral; and that the privacy of both the accuser and the accused are protected to the extent possible.

Training. Implementing policies and reporting procedures is a strong start, but best practices for preventing workplace discrimination/harassment also include training of employees and managers/supervisors. The EEOC recommends more frequent and varied live training that is beyond the annual or biannual anti-harassment training that most employers conduct. The 2016 EEOC report recommends four types of training:

  • Compliance training for all employees;
  • Compliance training for supervisors and managers;
  • Workplace civility training; and
  • Bystander intervention training.

Response to a complaint. Best practices dictate that, as part of an employer's duty to prevent workplace harassment/discrimination and retaliation, an employer should take corrective action in response to an allegation of discriminatory or harassing conduct. Corrective action generally requires an investigation, and a health care company should appoint a disinterested individual, such as a human resources director, to investigate the complaint to ensure that the investigation is neutral and objective. In certain situations, a company may opt to have a neutral third party, such as an employment attorney, conduct the investigation.  Further, in situations where the complaint alleges sexual harassment, it is typically best to appoint a neutral investigator who is the same sex as the complainant.

No retaliation. Employers are prohibited from retaliating against an employee who makes a complaint of harassment or discrimination. Employers should make clear that an employee who files a complaint, or reports harassment, will be protected from retaliation. Employers should also make clear that anyone who participates in an investigation of alleged harassment or discrimination will be protected from retaliation.  

Q: What are common pitfalls you've seen providers succumb to?

Levy: While most health care companies have in place some form of anti-discrimination policy, one of the biggest mistakes we see employers make is failing to adequately train their supervisory employees on enforcement of their policies.  

Supervisors are the primary line of defense for preventing and/or adequately addressing sexual harassment. Overlooking a small issue may end up coming back as large-scale lawsuit. As described above, in addition to providing basic compliance training, employers should be vigilant in providing supervisors and managers with additional training to help ensure compliance with anti-discrimination laws and to ensure that problematic conduct is addressed before it rises to the level of illegal harassment. Supervisors and managers should be afforded live, interactive training that provides easily understood and realistic methods for dealing with harassment that they observe, that is reported to them, or of which they have knowledge.  

In addition, employers sometimes succumb to overlooking discriminatory/harassing conduct of an employee because that employee is an otherwise high-performing employee. While the specifics will depend on the organization, providers should at a baseline ensure that all employees understand their rights and their ability to address any concerns with management—even if those concerns relate to a high performer. 

Finally, in recent years, social media has become an often-overlooked medium for workplace harassment. The EEOC has opined that mistreatment of employees on social media carries the same weight as any other inappropriate workplace interaction. Employers should keep social media in mind when drafting or revising their anti-harassment/discrimination policies.

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