Drafting an Airtight Sexual Harassment Policy

In a time when physician incomes are plummeting and the government is launching a new wave of fraud and abuse investigations, probably the last thing on doctors' minds is whether their practice has a sexual harassment policy. But it's worth a second thought.

Sexual harassment awards can take a bite out of a practice's pocketbook - not to mention wreak havoc on a practice's reputation.

Take the case of Dr. William Ziering, a Fresno, Calif., allergist. Accused of harassing former employees and patients, Ziering was ordered by a jury to pay $500,000 to a former file clerk in his office for touching her sexually and making lewd comments. That came on top of confidential settlements the 67-year-old Ziering reached with two other former employees.

Unlike other businesses, physician practices have a host of specific patient-contact issues that need to be addressed in their sexual harassment policies, says Karen Sutherland, a Seattle, Wash.-based attorney specializing in employment law and sexual harassment issues.

For example, an airtight policy should require that a third party be in the examining room when doctors examine patients, according to Sutherland. Further, that person should be the same gender as the patient to give them added credibility as a witness, Sutherland says.

"Doctors should note on the chart who the witness is so that when a suit is filed three years later, they don't have to rely on their memory," she adds. "The failure to document this kind of stuff is what gets doctors and other employers into trouble most of the time."

A medical office's sexual harassment policy also may want to prohibit jokes about human body parts or conditions, Sutherland says. "Doctors' offices have lots of naked people running around and that tends to generate a lot of anatomy jokes," she said. "Those are the kinds of things that can create a hostile work environment claim pretty quickly."

Crafting airtight policy

The best way to stay out of court on sexual harassment issues is to hire an employment lawyer or human resources consultant to craft a solid sexual harassment policy and then train employees how to implement it, says Sutherland. The foundation of such a policy is a clear statement of what constitutes sexual harassment and a prohibition of that conduct.

Two types of sexual harassment claims have been recognized as valid by the U.S. Supreme Court - the first is quid pro quo harassment, where a supervisor demands sexual favors from a subordinate in return for job security or advancement. The second is hostile work environment harassment, where employees are subjected to offensive and degrading comments, actions and symbols of a sexual nature.

It doesn't matter if the physician-owner isn't the one being accused of harassment, nor does it count if the physician claims he had no knowledge harassment was taking place, Sutherland points out. The practice's owner can - and most likely will - be held liable.

Physicians must also ensure that an effective reporting procedure is in place so workers or patients can take complaints to an independent, neutral party. "If the office manager is harassing one of the filing clerks, it won't do any good to have the office manager as the person designated to receive harassment complaints," Sutherland says. In large companies, human resources directors take complaints. Some small medical practices designate their attorneys as harassment report collectors.

"Doctors have a lot of power in society, so patients and employees are going to be even more reluctant than normal to report harassment complaints," Sutherland says. "That's why it's absolutely critical for doctors to have an outside party receive such complaints."

The policy must make it clear there will be no retaliation for filing such complaints, she warns. "I've had cases where the jury found that the claims of sexual harassment weren't true, but handed down seven-figure awards to plaintiffs who were retaliated against for making the claims," Sutherland says.

Once a complaint is filed, ensure that a prompt and thorough investigation of the claim is done by an experienced party, she says. To be safe, it's best to bring in an attorney or consultant who specializes in such investigations.

If a complaint is found to be meritorious, the practice needs to take whatever disciplinary actions are outlined in the policy - from warnings to dismissal, Sutherland says. Whatever you do, she adds, make sure reprisals carry the same weight for all employees. The policy also must be enforced evenly against both workers and supervisors. "Juries take a very dim view of double standards," she warns.

Jef Feeley can be reached at editor@physicianspractice.com.

This article originally appeared in the March/April 1999 issue of Physicians Practice Digest.