Harassment can be legal land mine for staff, risk managers

Lawsuits claiming harassment are flourishing in the health care industry and should be a major area of concern for risk managers, warns John Lyncheski, JD, attorney with the firm of Cohen & Grigsby in Pittsburgh. In addition to the liability posed by actual cases of harassment, health care institutions face the risk of unwarranted jury verdicts and increased awards from juries that perceive you as insensitive in responding to a claim.

Health care provider companies can be a real minefield for harassment claims because of the preponderance of female employees and male physicians in superior positions, he says. The traditional styles of encounter between nurses and physicians, for instance, easily can lead to claims of harassment, especially with younger employees who are not used to, and don’t accept, the traditional style.

Lyncheski is a labor law specialist and has represented a number of health care facilities defending themselves from claims of workplace harassment. He spoke recently to attendees at the annual meeting of the American Society for Healthcare Risk Management (ASHRM) in San Diego, cautioning them that many juries are sympathetic to the plaintiff and believe that a case must have merit if it makes it to trial. Jury verdicts often reach seven or eight figures, making the issue a serious risk.

Also, the financial cost is not the only liability you could face from a harassment case.

"The effects of harassment can not only be financially devastating, but will significantly impact employee morale," Lyncheski says. "If you don’t deal with these cases properly and promptly, harassment can have far-reaching and harmful effects on the workplace and negatively influence employee morale and employee relations, even for those not directly involved."

Sexual harassment is not the only risk

Sexual harassment has dominated the headlines in recent years, but health care providers also face liability risks from age harassment, racial harassment, and same sex harassment. Lyncheski points out that the current trend toward fierce government intervention in the health care industry can make matters worse for any facility accused of harassment, with the aggrieved party seeing government regulators as an attractive outlet for their frustration.

Risk managers should have a thorough understanding of the types of harassment that can occur in the workplace and take the proper steps to minimize the risks, Lyncheski says. Recent case law has helped clarify some previously murky issues in harassment law, such as when the employer is liable for a case of harassment. he says recently issued opinions indicate the employer is "absolutely liable and has no defense" if harassment based on the employee’s sex results in the supervisor taking a tangible employment action against the subordinate, such as hiring, firing, failing to promote, reducing pay, or reassigning or causing a significant change in benefits.

Other situations can be less clear in terms of the employer’s liability. If a supervisor attempts to extract sexual favors through threats (but doesn’t actually carry through), or if the supervisor engages in other offensive verbal or physical conduct, the employer is not automatically liable. In that case, the employee must prove that the threats or conduct created a hostile work environment. To counter the claim, the employer must prove that it acted reasonably to prevent and promptly correct the harassment, and that the victim of the harassment unreasonably failed to take advantage of the employer’s preventative or corrective measures or otherwise avoid the harm. (See more on defining a hostile work environment.)

That is a change from previous interpretations of sexual harassment law, Lyncheski says. In recent Supreme Court rulings, the harassment victim has to prove management-level people had reason to know about the supervisor’s harassment and failed to take prompt and immediate action.

"Under the old standard, if the harassment was stopped, the employer was pretty much off the hook," Lyncheski says. "That’s not so any more. The opinions encourage employers to be proactive and would-be victims to avoid harm when possible." (See pp. Xx-xx for tips on investigating a harassment claim.)

Harassment policies are first line of defense

Risk managers should see the harassment policy as the first line of defense, Lyncheski says. Health care providers should have policies that include "stiff warnings to those who would engage in any form of harassment that the employer means business and will promptly and appropriately discipline offenders, no matter how high their position in the organization."

But remember that an unread policy is worthless, he says. He offers this advice on writing a harassment policy:

• Maintain evidence that all employees have received the policy. All new hires should sign a form indicating they have received the policy, read it, and understand it.

• Update the policy and reissue it, completely circulating it to all employees, at least once a year.

• Post the policy in areas accessible to all employees, such as break areas.

• Don’t forget employees in remote or satellite locations, temporary employees, and part-time employees.

• The policy should make clear that harassment is against the law, not merely something frowned upon.

• Include instructions for dealing with harassment not only by supervisors but also by fellow employees and anyone else employees come in contact with as part of their employment. That may include patients, vendors, clients, and customers.

Source: John Lyncheski, Cohen & Grigsby, 2900 CNG Tower, 625 Liberty, Pittsburgh, PA 15222. Telephone: (412) 394-4900. E-mail: Jlyncheski@cohenlaw.com.