Question: A medical assistant alleged that Dr. Y sexually harassed her by sending anonymous gifts and messages such as, “you’re gorgeous,” and “I love your figure.” It was a repeat of Dr. Y’s previous behavior pattern directed at a different worker, who had lodged a complaint with the human resources department. The medical assistant now files a sexual harassment action under Title VII of the federal Civil Rights Act of 1964 against the health care institution, alleging a hostile work environment.
Which of the following is false?
A. Sexual harassment is a form of sexual misconduct regulated by state medical boards.
B. Mere words, without physical action, may suffice to be deemed sexual harassment.
C. A hostile environment arises when offensive conduct is so severe and pervasive as to amount to job discrimination.
D. Sexual harassment is a civil rights violation unique to the workplace.
E. Liability may attach to the supervisor, institution, or the harasser.
Answer: D. This hypothetical is modified from an actual Connecticut case that was recently decided in favor of the plaintiff.1 In that case, which involved a dentist, the federal Second Circuit unanimously rejected the University of Connecticut Health Center’s appeal against a jury’s verdict holding it responsible for its employee’s sexual harassment of a coworker, who was awarded $125,000. It ruled that the health center should have known of its employee’s harassing behavior.
Sexual harassment, a current hot topic, is pervasive, affecting a diversity of individuals in the fields of media, sports, politics, judiciary, education, entertainment, and others. The medical profession is no exception, and studies indicate that sexual harassment affects patients and physicians alike, occurring in hospitals, private offices, and academic centers.
In a large questionnaire study involving 4,501 female physicians, the authors found a prevalence rate of 47.7%. Harassment was more common while in medical school or during internship, residency, or fellowship than in practice.2 Patients may be the harassers. In 599 of the 1,064 licensed female family physicians in Ontario, more than 75% reported sexual harassment by patients at some time during their careers, either in their own offices by their own patients, or in settings such as emergency departments and clinics, where unknown patients presented an even higher risk.3
When physicians sexually harass fellow workers such as nurses, they distract their victims from providing attentive and competent care. In a review of the subject, researchers cited a study of 188 critical care nurses in hospitals, where nearly half (46%) reported experiencing sexual harassment that included “offensive sexual remarks, unwanted physical contact, unwanted nonverbal attention, requests for unwanted dates, sexual propositions, and physical assault.”4 To this list must now be added misconduct via the use of social media. In the study, physicians (82%), coworkers (20%), and immediate supervisors (7%) accounted for most of the incidents.
Neglecting to look seriously into complaints or to monitor and remedy the situation may create a hostile environment and trigger liability.
An example is the recent well-publicized case of Olympics team physician Dr. Larry Nassar, who was also a faculty member at Michigan State University. Olympic gold medalist McKayla Maroney named both the university and the U.S. Olympic Committee as codefendants in a lawsuit alleging that the institutions failed to properly investigate the team doctor’s criminal sexual conduct.
In Anania v. Daubenspeck Chiropractic, two employees of a chiropractor alleged that his patients sexually harassed them, but he did not remedy the situation.5 The trial court initially dismissed their lawsuit, holding that Ohio law did not recognize a cause of action for sexual harassment by a nonemployee patient, and that liability for sexual harassment can only exist in the context of respondeat superior (employer-employee) liability.
However, the court of appeals held that so long as the chiropractor knew or should have known of the harassment, and failed to take corrective action, he could be liable for allowing a hostile environment to exist.
Negligent supervision is another favorite plaintiff’s cause of action. In Doe v. Borromeo, a patient sought to hold the hospital liable for sexual assault by a physician during a medical exam.6 The lower state court had summarily dismissed the case, which was based on vicarious liability, but the state court of appeals reversed, finding the patient’s complaint against the hospital included a negligent supervision claim.
The appeals court reasoned that this was distinguishable from one based upon vicarious liability, so long as the supervising entity had a duty to protect the victim – and such a duty can only be established if the supervising entity knew or should have known of the existence of the harasser’s propensities, if any, to commit criminal and tortious acts.
Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission. The commission’s website explains the law in clear and simple language:
“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex.
“For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
“Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.”7
For sexual harassment to occur, the aggrieved party must either show a “hostile environment” or “quid pro quo” situation.
In a hostile environment case, the harassment is serious and persistent, creating unacceptable and offensive work conditions. The plaintiff has to show that the employer knew or should have known of the situation but failed to remedy it.
The “quid pro quo” type of case requires a showing that a person in authority conditioned some aspect of the employee’s employment, such as promotion or retention, upon a sexual favor or relationship.
The U.S. Supreme Court has both clarified and muddied the law’s position on these two previously distinct types of sexual harassment.
In the landmark case of Burlington Industries v. Ellerth, the plaintiff, who was a salesperson, alleged that a supervisor made advances to her and threatened to deny her certain job benefits if she did not cooperate.8 The threats were never carried out, and she was in fact promoted; but her lawsuit alleged that the harassment caused her resignation and amounted to a “constructive” discharge.
Likewise, in Faragher v. City of Boca Raton, the plaintiff, employed as a lifeguard, alleged that her work environment was riddled with crude remarks and obscenities.9 One of the two supervisors reportedly once said to Faragher, “Date me or clean toilets for a year.” Another lifeguard had previously lodged similar complaints. The plaintiff ultimately resigned and brought suit.
The U.S. Supreme Court characterized both of these as “hostile environment” rather than “quid pro quo” cases, because the plaintiffs did not suffer any direct adverse job action. In its decisions, the court defined the scope of liability and affirmative defenses, holding that employers can be subject to vicarious liability when supervisors create actionable hostile work environments.
In other cases, the Supreme Court has ruled for the use of “the reasonable person in the plaintiff’s position” standard in judging the severity of sexual harassment. The court has also held that the genders of the harasser and the harassed employee are not material in determining whether sexual harassment has occurred.
A physician can be accused of harassing an employee, a nurse, an assistant, a fellow worker, a third party, or a patient. Focusing on misconduct within the doctor-patient relationship, the Federation of State Medical Boards adopted in May 2006 a policy entitled “Addressing Sexual Boundaries: Guidelines for State Medical Boards.”10
Although it did not use the term sexual harassment, the policy emphasized that physician sexual misconduct may include behavior that is verbal or physical, and may include expressions of thoughts and feelings or gestures that are sexual. It used the term “sexual impropriety” to denote behavior, gestures, or expressions that are seductive, sexually suggestive, disrespectful of patient privacy, or sexually demeaning to a patient. Together with “sexual violation,” a term the FSMB used when referring to physical sexual contact, they form the basis for disciplinary action by a state medical board.
Caveat: When performing a physical exam, physicians should always use good judgment and sensitivity, relying on the presence of a medical assistant to ensure patient comfort and to alleviate possible embarrassment or anxiety.
Under the federal EEOC rules, the employer rather than the harasser is the defendant. But there are other legal recourses, including tort and criminal actions, that directly target the harasser. Successful plaintiffs may be awarded lost wages, as well as damages for emotional distress, medical expenses, and punitive damages. They may also recover attorney fees.
In one case, a psychiatric nurse was awarded $1.2 million (later reduced to $850,000); in another, a nurse successfully sued a physician’s medical practice and received $150,000 in damages.4 And in an unusual case, a plaintiff was awarded only $1 in damages, but her counsel was paid $41,598 in fees.11 For the practicing doctor, medical board sanction, notoriety, and loss of professional standing and privileges constitute additional costs.
The medical profession is as susceptible as any other – perhaps more so – to allegations of sexual harassment. The magic words for actionable sexual harassment are severe, pervasive, and unwelcome. Although laws in the workplace generally do not prohibit simple teasing, offhand comments, or minor isolated incidents, the line separating these behaviors from bona fide sexual harassment is thin.
Erring on the side of strict and sober professional propriety seems prudent, given the current climate of zero tolerance.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at siang@hawaii.edu .
References
1. MacCluskey v. University of Connecticut Health Center , United States Court of Appeals, Second Circuit, No. 17-0807-cv, Dec. 19, 2017.
2. Arch Intern Med. 1998 Feb 23;158(4):352-8 .
3. N Engl J Med. 1993 Dec 23;329(26):1936-9 .
4. J Nurs Care Qual. 2004 Jul-Sep;19(3):234-41 .
5. Anania v. Daubenspeck Chiropractic , 718 N.E. 2d 480 (Ohio 1998).
6. Doe v. Borromeo , Nos. 305162, 305163 (Mich. Ct. App. Sept. 20, 2012).
7. Available at https://www.eeoc.gov/laws/types/sexual_harassment.cfm .
8. Burlington Industries, Inc. v. Ellerth , 524 US 742 (1998).
9. Faragher v. City of Boca Raton , 524 U.S. 775 (1998).
10. Federation of State Medical Boards, “ Addressing Sexual Boundaries: Guidelines for State Medical Boards. ”
