This member-only article appears in the September issue of Patient Safety Monitor Journal.
Most employers are required by Title VII of the Civil Rights Act and state law to guard against and respond to claims that an employee was sexually harassed by a coworker or manager. However, what employers may not know is they can also be liable for sexual harassment of an employee by non-employees, such as sales representatives, patients, or referral sources.
Non-employee sexual harassment, also called third-party sexual harassment, is common, says attorney Sarah Carlins with Houston Harbaugh in Pittsburgh. The employer can be liable for acts of a non-employee if the employer knew about the conduct and failed to take immediate and appropriate corrective action.
For example, Southwest Virginia Community Health System paid $30,000 to settle an Equal Employment Opportunity Commission (EEOC) sexual harassment suit brought by a female receptionist at one of its clinics. She had complained to her supervisor that a male patient was sexually harassing her, but no action was taken to stop the abuse. The health system also had to conduct training on sexual harassment prevention, post a notice about the settlement, provide a copy of its sexual harassment policy to all employees, and report new complaints to the EEOC.
The EEOC also has filed a lawsuit against Home Instead, a California homecare provider that refused to reassign a homecare worker who had reported being sexually harassed by a client.
Remember that accreditors are watching whether you are protecting your workforce. The Joint Commission earlier this year issued a Sentinel Event Alert to bring awareness to physical and verbal harassment of staff.
Physician offices, homecare facilities, or other settings in which employees are in close working proximity with patients and others, and in which the setting is often more intimate and personal, may be especially vulnerable to sexual misconduct claims, including third-party ones. Patients and referral sources wield considerable power because they bring in revenue, says attorney Audrey Mross with Munck Wilson Mandala in Dallas. “It’s about power.”
Of course, it’s harder to take corrective action against the harasser when he or she is a third party because a provider doesn’t have the power to directly discipline and/or fire that person, points out Mross. But the employer still has a legal obligation to provide a safe environment for its employees.
“This is a developing area. We’ll see more people emboldened and comfortable speaking out. People are reevaluating the behavior they’ve received,” Mross says.
It also helps if you’re not one of the 12% of healthcare practices that don’t have a sexual harassment policy.