How To Protect Your Practice Against A Sexual Harassment Claim

December 2017 ISSUE December 1, 2017
Practice Management Personnel
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Recent allegations against Harvey Weinstein have unleashed an avalanche of sexual harassment claims against others in the entertainment field, politicians – including the current and former Presidents, and other public figures.

These claims can be extremely stressful and costly. Some sexual harassment cases have resulted in verdicts of millions of dollars for emotional distress and punitive damages. Even if the case never reaches court, settlements often run into hundreds of thousands of dollars, not including legal fees.

And the claims can place a huge stress on you and your practice. The negative publicity can result in the loss of existing patients and bring new patient flow to a screeching halt. Given these extremely negative repercussions, it’s critical to take all possible steps to protect your practice.

What Is Sexual Harassment?

The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome conduct based on sex,” and is considered a form of employment discrimination. The EEOC says sexual harassment is unlawful if either: 1) enduring the offensive conduct becomes a condition of continued employment; or 2) the conduct is so severe or pervasive that it creates a work environment that a reasonable person may find intimidating, hostile, or abusive.

Similarly, sexual harassment claims can be brought under federal and state laws on the basis of a hostile work environment or quid pro quo (one thing in return for another). Hostile work environment claims may include unwanted physical touching, sexual remarks about the speaker or the recipient’s body or sexual interests, repeated requests for a date, conversations, stories, or jokes with sexual content, and physical or computer-based displays of sexually explicit materials. A quid pro quo sexual harassment claim arises when a condition or benefit of employment is contingent on sexual favors being provided to an individual who has authority to make decisions about employment. Similarly, a denial of an advance or request for sexual favors that results in a loss or diminishment of job benefits is also considered quid pro quo sexual harassment.

Protecting Your Practice

Take the following steps to protect your practice against sexual harassment claims:

  1. Avoid bad behavior – The easiest solution is to eliminate grounds for any sexual harassment claims being filed. Not sure whether a statement or action will get you in trouble? Here’s a simple test. Ask whether if you made that statement or performed that act in front of your mother, would she find it offensive? If so, don’t do it!
  2. Establish a written policy against sexual harassment – Amend your staff manual/office policy to clearly and explicitly state that your practice is committed to a harassment-free workplace, defining harassment broadly as set forth above. This policy should lay out a clearly defined complaint procedure for employees to follow if they have potential harassment claims and require that those complaints be filed in writing immediately.

    Many of the recent sexual harassment claims are based on alleged actions that occurred decades ago. Requiring immediate reporting shifts the burden of proof to the employee if no mention is made of the alleged complaint at the time it occurred, but only after the staff member is later terminated, not given a raise, promotion, etc. The policy should also prohibit retaliation against any staff member filing a sexual harassment claim.

    Furthermore, be ready to conduct a prompt and thorough investigation in the event a claim is made, using an unbiased party. In many cases, employer liability hinges on whether the practice conducted an appropriate workplace investigation into the matter after learning of the sexual harassment allegations.
  3. Communicate it to your employees – It’s not enough to go to the time, effort, and expense of developing a sexual harassment policy and having it adopted by your practice. Rather, the policy must be communicated in writing to your employees, and they must acknowledge receiving it. Otherwise, an employee may claim that she was unaware of it because she never received it.
  4. Take out employment practices liability insurance (EPLI) – In the past, we did not consider the threat of a sexual harassment claim to be serious enough to warrant carrying specific insurance coverage for it. Recent events have changed our view, and we now recommend that doctors purchase a small EPLI policy providing $200,000 of coverage for attorney’s fees and settlement payments. This coverage is not found in basic property and casualty insurance policies, so contact your commercial insurance agent to get a quote.

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