EXECUTIVE SUMMARY

As news reports indicate, sexual harassment charges can occur anywhere, anytime, including in ambulatory surgery centers (ASCs).

• One sexual harassment case resulted in a surgeon and hospital losing a suit to the tune of $168 million.

• Sexual harassment often involves a powerful person harassing a less powerful person.

• Surgery centers that ignore sexual harassment run the risk of huge financial, reputational, and worker morale costs.


Sexual harassment allegations made headlines for weeks in late 2017, targeting politicians, actors, movie moguls, and others. In recent years, similar allegations also resulted in surgery centers and other healthcare organizations paying millions in fines and lawsuit damages after such allegations were ignored.

For instance, an employee sued one neurological surgery center, alleging repeated sexual harassment, including a physician’s questions about her appetite for sex and crude comments about her body. (Read more about the case at: http://bit.ly/2i04UMV.)

In another case, a federal judge awarded a woman $800,000 in damages after a civil jury trial in which the woman said a physician sexually harassed her and managers took no corrective action. (Read more about the case at: http://bit.ly/2ipLF01.) In another case, a woman won nearly $168 million in a harassment suit that included a hospital and surgeon. The plaintiff described receiving a needlestick, someone calling her a “stupid chick,” and hearing trashy sex talk. She’d filed 18 written complaints and was ultimately fired. (Find more information at: http://abcn.ws/2APC8pD.)

“You can see from the news the tremendous attention the issue has gotten,” says Veronica Gray, partner at Nossaman LLP in Irvine, CA. Gray also is the chair of the employment law practice group at Nossaman. “Women are becoming empowered by this. They’re more aware. We’re all becoming more aware of how widespread it is.”

The cases that make it to court often are extreme examples, and often involve alleged victims who brought the problem to managers’ attention. More commonly, employees will suffer uncomfortable behavior and not speak up, as shown by the decades-old allegations that are surfacing.

“One of the big issues with sexual harassment is it’s often a situation where you have a much more powerful person sexually harassing someone, and that person doesn’t have the power to speak up,” says Elizabeth J. Chen, JD, an associate with Wigdor LLP in New York City. For instance, when it’s the surgeon making sexual comments, the lower level the employee, the harder it is for the worker to speak up, Chen adds.

What surgery center managers need to keep in mind is that sexual harassment exacts a huge social cost and can be financially burdensome to ambulatory surgery centers (ASCs). Surgery center directors must take seriously all sexual harassment complaints, says Stuart M. Address, Esq., of Stuart M. Address Law in Stuart, FL.

“The cost of not taking a complaint seriously can be astronomical when it comes to damages and attorney fees and the time to proceed with discovery,” Address says. “Frankly, it’s not worth it. It shouldn’t happen, and, if it does happen, I’d tell any employer to take it seriously.”

The costs to ASCs also include higher employee turnover and developing a reputation as a bad place to work. The workforce quality diminishes, Chen says.

“A lot of companies make a cost-benefit analysis that is wrong,” Chen says. “You look at someone like Harvey Weinstein or Bill O’Reilly, and time and time again, as The New York Times reported, those companies made a choice.”

They chose to pay off the women making accusations and keep their stars.

“But there’s a cost to that,” Chen warns. “When you look at surgical centers and hospitals, you find that it’s not always the person in the most power who is doing the harassing, but that’s the person who is most likely to get away with it.”

When an employee makes a sexual harassment allegation, ASCs should investigate immediately.

“If there’s a potential lawsuit, they should get attorneys to run the investigation, rather than doing it on their own,” Chen suggests. “It’s better to have advice from an attorney who is skilled and qualified in this area.”

Investigations can find out the intent of the incident. “Was it a stupid compliment?” Address asks. “There are people who think sexually oriented jokes are good for morale or fun.”

If the investigation finds that the problem can be remedied with better staff education about sexual harassment, then it might not be necessary to fire the person accused of harassment. It might be enough to move the person to another location or shift, Address says.

“You don’t want to move the victim because that could result in an adverse employment action, unless the victim asks to be moved,” he says.

One of the challenges from an ASC perspective is that the person who is accused might be a surgeon partner/owner of the ASC. The employee’s complaint cannot be ignored, but handling it properly is complicated, Address notes.

“What you need to do is show you’re taking the complaint seriously and make sure the partner understands that this is not how we operate and it won’t happen again,” he says.

Managers and employees might think of sexual harassment as falling under Title VII of federal law, which covers discrimination. But state and local laws sometimes provide even more protection than federal laws, Chen says. For example, in California, there is a law against harassment and discrimination under the Fair Employment and Housing Act, Gray says. The 1959 act protects workers from discrimination due to age, race, disability, gender, religion, and other characteristics. It’s been used successfully in sexual harassment cases. (Read more about this law at: http://bit.ly/2zM4nbr.)

“Typically, employees are going to sue under the Fair Employment and Housing Act in California because it’s broader,” Gray says.

Also, California companies with 50 or more employees are subject to mandated harassment training of supervisors, according to Assembly Bill 1825. An amendment includes bullying and abusive conduct, Gray says.

“Your company policies can go beyond the law,” she says. “Look at most companies’ handbooks, and you’ll see that bullying and abusive conduct are prohibited conduct.