Ensuring Sexual Harassment Policies and Procedures are Compliant in Today’s Environment

By Adrienne Dresevic, Esq. of The Health Law Partners, P.C.

With the #MeToo movement sweeping the country, radiology providers and supplies should ensure that their sexual harassment policies and procedures are compliant with applicable federal, state, and local laws.

Since the rise of the #MeToo movement, there has been a substantial increase in the amount of sexual harassment allegations and lawsuits filed. According to preliminary data reported in early October by the United States Equal Employment Opportunity Commission (EEOC),[1] the federal agency responsible for enforcing civil rights laws against workplace discrimination, there was a substantial increase across the board during FY 2018. According to the report:

The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50% increase in suits challenging sexual harassment over fiscal year 2017.

In addition, charges filed with the EEOC alleging sexual harassment increased by more than 12% from fiscal year 2017.

Overall, the EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

One of the better known lawsuits filed by a sexual assault victim centered around Dr. Larry Nassar, team physician with the USA Olympics and Michigan State University (MSU) gymnastics teams, in which he was accused of sexual abuse by hundreds of female gymnasts. In February 2018, Dr. Nassar was sentenced to 40 to 125 years in prison, and in May 2018, MSU settled to pay $500 million to Dr. Nassar’s victims.

In the wake of this new era, radiology providers and suppliers should ensure that best practice policies are determined and implemented in order to both protect their employees and patients and to limit employer liability.

An employer may be liable for acts of an offending employee if the employer knew or should have known of that employee’s propensity to commit such wrongful acts. For example, in Doe v. Borromeo,[2] a patient sued a hospital physician alleging she was assaulted while being examined. She also named the hospital claiming direct and vicarious liability as a result of the physician’s conduct. The Michigan Court of Appeals explained that a successful claim against the hospital must establish that the hospital knew or should have known of the existence of the physician’s “propensities, if any, to commit criminal and tortious acts,” in which case a duty is placed on the hospital to protect the patient.[3] Accordingly, it is imperative that employers implement policies and procedures on how to handle investigations when an employee or patient alleges sexual harassment.

For radiology providers and suppliers, allegations may arise either from interactions between employees or between patients and employees. When sexual harassment is alleged, an employer has various obligations (depending on the jurisdiction) which may include, among other things, a sufficient complaint and investigation process and employee training. In some jurisdictions, an employer is mandated to include such obligations in a policy adopted by the employer. Obligations and policy requirements vary from state to state and are subject to change (especially in the present era). For example, New York State recently released a draft sexual harassment policy,[4] as part of recently enacted legislation,[5] which all employers must adopt or ensure that its current policy meets or exceeds minimum standards which include, among other things, the following:

The policy must prohibit sexual harassment consistent with published guidance;

provide examples of prohibited conduct that would constitute unlawful sexual harassment;

include certain information regarding federal, state, and local laws;

include a complaint form and remedies available to victims of sexual harassment;

include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;

inform employees of their rights of redress for adjudicating their complaints;

clearly state that sexual harassment is considered employee misconduct and provide for sanctions; and

clearly state that retaliation against individuals who complain of sexual harassment is unlawful.[6]

In light of the above, radiology providers and suppliers should consult with their legal advisors to ensure that appropriate practices and policies relating to sexual harassment are in place and in compliance with current federal, state, and local laws.

For more information on issues relating to this article, please contact Adrienne Dresevic, Esq. at (248) 996-8510 or by email at adresevic@thehlp.com.

Footnotes:

[1] See https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm.

[2] 2012 WL 4215032 (Mich. Ct. App. Sept. 20, 2012).

[3] The appeals court remanded the case back to the lower court (which had dismissed the case) on the basis that no discovery into this issue has yet been conducted and that there was no opportunity for the patient to develop facts whether the hospital owed her a duty.

[4] See https://www.ny.gov/combating-sexual-harassment-workplace/employers.

[5] See N.Y. Lab. Law § 201-g.

[6] New York law also requires employers to provide sexual harassment prevention training including specific required content.

Adrienne Dresevic, Esq. is a Founding Shareholder of The Health Law Partners, P.C., a nationally recognized healthcare law firm with offices in Michigan and New York. Practicing in all areas of healthcare law, she devotes a substantial portion of her practice to providing clients with counsel and analysis regarding compliance, Stark Law, Anti-Kickback Statute, and compliance related issues. Ms. Dresevic serves on the American Bar Association Health Law Section’s Council, which serves as the voice of the national health law bar within the ABA. Ms. Dresevic also serves as the ABA Health Law Section’s Co-Chair of the Physicians Legal Issues Conference Committee, Vice Chair of the Programs Committee (Executive Leadership), and Vice Chair of the Sponsorship Committee. She is licensed to practice law in Michigan and New York, and can be contacted at adresevic@thehlp.com.

The author is a member of The Health Law Partners, P.C. and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.