EXECUTIVE SUMMARY

Surgery centers can take several steps to reduce the likelihood of a sexual harassment claim or to handle one without it heading to court.

• The first step includes establishing an independent reporting structure.

• Communication about written policies on how sexual harassment is handled is crucial.

• Train both managers and staff on what sexual harassment is and how to handle such incidences.


Recent lawsuits about sexual harassment in ASCs have involved allegations of physicians harassing technicians, nurses, and other staff. These types of incidences are particularly difficult to handle in ASCs because those accused also might be a partner in the practice. The best solution is prevention.

Surgery centers can create policies, procedures, and corrective actions that could prevent sexual harassment from taking place and prevent lawsuits when incidents occur. The following are some effective strategies:

• Establish an independent reporting structure. ASCs should make sure there are ways employees can report sexual harassment that do not rely on the person going to the harasser.

“There should be a board or independent, outside consultant,” says Elizabeth J. Chen, an associate with Wigdor LLP in New York City.

Smaller companies might use outside human relations groups, and they could handle harassment reports. Employees should be able to approach more than one person to report their experience, just as there are different ways staff can report unsafe behavior in the operating room.

• Communicate written policies clearly to managers and staff. Internal policies and structures should make it clear that sexual harassment is not acceptable and applies to everyone in the center, including the ASC’s owners, Chen says.

“Within their policies, there should be a reporting structure where if something does happen, there’s a clear way for anybody who feels harassed to report it,” she adds.

“You need to start with a written policy and communicate that policy to supervisors, management-level people, and even to regular employees, making it very clear that the policy will be enforced and is not just a piece of paper,” says Stuart M. Address, Esq., of Stuart M. Address Law in Stuart, FL.

The policy must outline the mechanism for how employees can make a complaint and how the complaint is handled.

“The legal standard to avoid legal liability is to do a prompt investigation, and, depending on what you find, to take proper action,” Address says. “If an employer does not do the appropriate investigation and take remedial action, then they’re on the hooks for damages for sexual harassment.”

Handled correctly, an ASC might be able to avoid a lawsuit.

“It really comes down to having the written policy, communicating the policy, and enforcing the policy,” Address stresses.

Today’s workplace is a long way from “Mad Men,” a TV show that depicted Madison Avenue advertising culture in the 1960s when sexual harassment was routine and women were powerless to stop it.

“What was accepted years ago is not acceptable today,” says Veronica Gray, partner at Nossaman LLP in Irvine, CA. “I’ve litigated a lot of cases, and at the end of every case, whether it’s litigation or remediation, people always ask me, ‘Veronica, what could I have done differently?’ And I say, ‘You could have communicated better.’”

• Train management and staff. ASCs should conduct regular training about what sexual harassment is and how it’s unacceptable in the workplace, Chen says. New ASC practices can hold sexual harassment training when the center opens, but also should hold refresher classes on sexual harassment and gender discrimination policies, Chen adds. Training sessions should provide examples of appropriate and inappropriate behavior to provide staff with context, Chen suggests.

“You can tell people to not sexually harass people, but without examples, it’s hard to know what that line is,” she says. “You hope everyone has a clear line of what is harassment behavior and what is not, but for those who are less able to see that line, it’s useful to give them words and statements that someone could find offensive.”

Organizations can educate with the help of online videos, but interactivity is crucial, Gray says. In one training video, there is a clip from the 1980 movie “9 to 5,” starring Lily Tomlin, Jane Fonda, and Dolly Parton. The movie was about three women office workers who exacted revenge on a sexist male boss.

“The excerpt is about how an employee named John is getting more money, and the boss’ excuse is that John has a family, and Lily Tomlin let him have it,” Gray says. “It’s funny, cute, and everyone gets the point.”

The problem is that women still deal with similar problems in today’s workplace, she adds. “Our biggest challenge is how to create the change,” Gray says.

Training is one positive step. “I believe live training is more effective because you’re in that room and you can read people’s body language, communicate, and bring up hypotheticals and get group involvement,” Gray explains. “A lot of people don’t realize that their behavior is inappropriate and how it is being perceived, and the perception becomes reality.”

An organization’s leadership must buy into the training and policies. Training sessions could include top leadership, who might hear the war stories of women who have been sexually harassed at previous jobs, Gray notes.

“Typically, the women won’t speak about a situation at their current company, but we’ve had war stories of situations where some women were comfortable enough to share their intimate situations,” she says.

ASC directors must protect the company and its employees, Chen notes.

“Sometimes, it’s just a question of making sure someone is aware of their behavior and explaining that what might have been appropriate in a surgical suite 30 or 50 years ago may not be appropriate today,” she says. “How do you moderate the behavior of someone who owns your practice? Unfortunately, the best way is to give them the cost-benefit analysis of how sexual harassment leads to more employee turnover, and it’s bad for morale.”

Also, lawsuits are extraordinarily expensive from the moment they’re filed, regardless of the outcome, Chen adds.

“And there’s a reputational cost,” Chen notes. “Getting bad publicity off Google is extraordinarily expensive.”