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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
Sexual harassment happens every day in the workplace and physician practices are not immune. Here are some tips to handle such situations.
What do you do in your medical practice if a female nurse complains that a male physician makes her “uncomfortable”? Perhaps he has touched her or made sexually explicit comments? Maybe he stands too close? Sexual harassment happens every day in the workplace and physician practices are not immune. However, most physician practices are uncertain how best to handle such situations.
Here are some tips:
1. Prevention is the best approach. The practice should have a policy making it clear harassment is illegal and will not be tolerated. Employees should be aware of the grievance procedures for sexual harassment complaints and how, and to whom, such complaints should be made. I also recommend practices create policies regarding interaction of staff in the office. For example, I discourage clients from allowing staff to be patients of the practice since a physician-patient relationship can confuse an employer-employee relationship. Likewise, in my experience, an over-familiarity among physicians and practice staff, whether through e-mail, texting, Facebook, or other means, can result in sharing of inappropriate humor or development of unprofessional relationships. Bawdy humor, flirtatious behavior, or other improprieties among staff should be documented and appropriate warnings or discipline administered.
2. When a complaint of harassment is made, it must be handled quickly and confidentially to demonstrate the claim is taken seriously. The accuser should be interviewed by a member of the same sex, whether it’s someone from the practice or legal counsel. The accuser’s statement should set forth the alleged facts and the dates on which they occurred, when possible. Witness names or supporting documentation should be provided by the accuser and the statement should be signed and dated. In this situation, I also like to have the complainant reassigned, when possible. For example, if it’s a female surgical nurse complaining about a surgeon, perhaps she only works with other surgeons once the complaint is made. This only works if such change does not result in any impact on salary or position; reassignment should never be viewed as a punishment!
3. The alleged harasser should be interviewed and provided with information regarding the alleged claims. If he or she agrees the incident occurred, the investigation is complete and appropriate discipline can be applied. The interview with the harasser should also be committed to writing, which is signed and dated. Appropriate discipline can range from warnings (dirty joke) to termination (inappropriate touching). Some sexual harassment rises to the level of illegal conduct, at which point legal counsel and/or the police may need to become involved.
4. If the accused denies wrongful conduct, the interview should still be documented and signed. The investigator will then need to talk to potential witnesses or, if there are none, others who work with the accused, to determine whether any similar acts have ever been observed. Sometimes there is simply no evidence to support either party’s claim. If this is the case, the parties should be informed that a decision cannot be made and that they will be observed going forward. This conclusion should also be documented. Follow up with both parties is essential to assure any harassment does not continue.
The process of addressing sexual harassment is complex. Friendly banter and affection between physicians and support staff can be offensive to some and meaningless to others. I am aware of one male employee who brought a claim because of dirty e-mails being sent through the office. Another physician, loved by all of his staff, had a claim brought against him because he stood too close to a female nurse, making her uncomfortable. Although his nearness was likely because of hearing loss (for which he wore hearing aids) and did not bother others, discomfort expressed by anyone must be addressed, whether the average person agrees it constitutes harassment or not.
Unfortunately, there are cases of significant sexual harassment which no investigation can completely resolve. A practice must check with its carrier to determine what coverage it may have for harassment claims and consult with legal counsel to make sure all allegations are properly addressed. How a practice handles claims of sexual harassment internally can have a significant impact should a lawsuit be brought against the practice by the victim of harassment.
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