Sexual harassment occurs more frequently in healthcare settings than risk managers might imagine, and the potential liability can be significant, says Jennifer Flynn, CPHRM, manager in the healthcare risk management division of consulting firm Aon in Fort Washington, PA.
She points to a 2016 report on sexual harassment claims from the Equal Employment Opportunity Commission that found that from 2005 to 2015, 11% of claims were from the healthcare and social assistance industry. (The report is available at: https://bit.ly/29nQYXI.)
“That was the fourth-highest in comparison to other industries, just slightly behind manufacturing. Not only is healthcare not immune to sexual harassment, but it is one of the industries with the most pervasive reports,” she says. “Unfortunately, experts believe sexual harassment claims are significantly underreported in healthcare.”
Hospitals and other healthcare employers can be held liable for sexual harassment if it is so frequent or severe that it creates a hostile work environment, Flynn explains. There also can be liability if the harassment is tied to an adverse employment decision, such as a nurse being fired, not being promoted, or transferred to less desirable shifts and assignments.
“That’s when the harassment becomes illegal, and the organization can face significant liability for allowing it to happen,” Flynn says. “We hear nurses say that sexual harassment is just part of the job, but employers have to actively work to change that attitude. They have to make it clear that employees have the right not to be harassed in the workplace and show them the mechanisms for reporting this behavior.”
There are many possible explanations for the underreporting of sexual harassment in healthcare, Flynn says. First, nurses and other employees may be unsure of what constitutes sexual harassment, just where the line is drawn, she says. They also may feel that reporting sexual harassment will reflect badly on them and be counted against them in their workplace evaluations, Flynn says.
“The facility or organization also might not have a clear reporting policy or mechanism. So even if a nurse wants it, she might not know how to,” Flynn says. “There also is the possible fear of retaliation by the person she’s reporting, especially if that person is someone she works with and is in a position of authority.”
Harassment in healthcare can take various forms, with an employee being harassed by a patient, visitor, colleague, or superior, Flynn says. There also can be cases in which an employee is being harassed or abused by a person he or she has a relationship with, the domestic relationship carrying over into the workplace, she says.
When patients sexually harass staff, staff members should be empowered to tell them the behavior is unacceptable. Flynn says staff members should speak directly to patients unless there is fear they will become physically abusive.
“That conversation is to set boundaries, to make clear that the comments the patient is making are unwanted. You have to be firm on that behavior, making clear that actions will be taken if that behavior does not stop,” he says. “You need to make a clear record of the encounter including exactly what was discussed and any verbatim comments from the patient, along with statements from any witnesses who were present for the behavior.”
If the behavior continues, the employee’s supervisor should speak to the patient. Continued sexual harassment by a patient can justify transferring him or her to another facility or caregiver, Flynn says.
“Your facility should have a clear policy on sexual harassment and the means for reporting it, but it’s also important that your employees model the desired behavior in front of patients and co-workers,” Flynn says. “The nurses themselves should avoid using terms that are harassing or inappropriate. If they find themselves making an inappropriate comment, they should immediately apologize.”
Healthcare organizations should provide annual training on sexual harassment that includes an explanation of policies and procedures, the mechanisms for reporting harassment, what will happen after it is reported, and what constitutes unacceptable behavior, Flynn says. The training might also include how to recognize warning signs of sexual harassment and assaults, and de-escalation techniques that might help defuse a situation that could lead to aggressive behavior.
• Jennifer Flynn, CPHRM, Manager, Healthcare Risk Management, Aon, Fort Washington, PA. Email: firstname.lastname@example.org.