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Most employers are familiar with the perils of discrimination and harassment in the workplace. As a result, most employers are also savvy enough to minimize their exposure by implementing anti-discrimination and harassment policies and reporting procedures, and training supervisors and employees on appropriate workplace conduct. Despite the constant barrage of cautionary tales, however, many employers assume that their training and policies are sufficient to ward off potential missteps and the ensuing liability. While many employers do a good job training their supervisors and following their own policies, this may not be enough. Despite good intentions there are two key issues to which most employers do not pay attention and which may greatly impact their potential for liability: harassment by non-employees and the identification of who qualifies as a supervisor. Both of these issues are particularly ripe for trouble in the health care setting.
Harassment by Non-Employee Third Parties
Although most employers are vigilant about workplace harassment, the focus of most policies and trainings are harassment by co-workers or harassment between supervisor and subordinate. Unfortunately, however, the market on harassment is not limited to other employees; anyone who comes into contact with an employee is a potential harasser. This can be a significant problem when an employer's business is contact with the public. The typical health care employer- hospital, doctor's office, etc. is a perfect example of the type of employer that needs to be extremely sensitive to this issue.
The Equal Employment Opportunity Commission ("EEOC") recently brought suit in the U.S. District Court for the Western District of Virginia against Southwest Virginia Community Health System, alleging that a receptionist at one of the employer's facilities was subjected to sexual harassment by a male patient from approximately April 2009 through December 9th of that year, and again from approximately June 8 through September 15, 2010. The suit alleges that the harassment included unwelcome sexual comments, such as the patient inviting the receptionist to "run away with" him, and that he was "visualizing [her] naked." The patient also apparently suggested that the employee should have sex with him. The suit further alleges that these types of comments were made both in person, when the patient visited the facility where the employee worked, and by telephone when the patient called the facility.
According to the lawsuit, the receptionist complained to her supervisor about the patient's sexual harassment, but the supervisor did nothing to stop the abusive conduct. The EEOC claims that the harassment and the employer's failure to stop the harassment violated the Title VII of the Civil Rights Act of 1964 and it seeks compensatory damages, punitive damages and injunctive relief.
The lesson here? Employers have an obligation to take prompt corrective action to stop unlawful harassment once they become aware of it, whether or not the harasser is another employee, a vendor or a patient. While this may be an uncomfortable shift in thinking for health care employers who are tasked with caring for patients and whose mission is good customer service, employers also owe a duty to their employees. Uncomfortable or not, the potential for harassment by non-employees must be part of any employer's dialogue on sexual harassment and other unlawful harassment. Employers should address the issue in employment policies, and in all anti-discrimination harassment or trainings. Supervisors must be trained to address and/or report incidents of harassment, and employees should be told that such conduct, even by patients, will not be tolerated and that they should report it to their supervisor.
Who is a Supervisor?
On November 26, 2012, the US Supreme Court heard oral argument in the case of Vance v. Ball State University. The outcome of this case, which will be decided sometime in 2013, could expand the definition of who qualifies as a "supervisor" for purposes of Title VII and increase employer liability risks arising from the behavior of lead persons. For employers who often have charge nurses or other "shift leads" directing other employees in their tasks, the outcome of this case could have significant ramifications.
Title VII of the Civil Rights Act of 1964 (as amended) prohibits employers from discriminating against employees and job applicants based on race, religion, national origin, sex, age and disability. Title VII's prohibitions have been interpreted to also prohibit, under some circumstances, the unlawful harassment of an employee based on any of these protected classes.
In two well-known cases, Farragher and Ellereth, the United States Supreme Court ruled that an employer may be subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor if the harassment results in a "tangible job detriment," such as a poor evaluation, termination, demotion, transfer, loss of work hours, change of shift schedule, etc. Essentially, if the harassing or discriminatory conduct results in a tangible employment action, the employer has no affirmative defense to liability and the supervisor's actions are attributable to the employer. If, on the other hand, the supervisor's harassment does not culminate in a tangible employment action, the Supreme Court established an affirmative defense that an employer may assert to avoid liability in certain circumstances. To establish the affirmative defense, the employer must prove: (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."¹ This heightened risk of liability because of supervisor actions is the primary reason that many employers are careful to train supervisors; to impress upon them the fact that their conduct could result in strict liability for the employer.
The Court's decision in the Vance v. Ball State case could significantly expand the definition of "supervisor" and thereby increase the scope of employees to whom heath care providers should consider providing enhanced anti-discrimination training.
In Vance, the plaintiff, a food services worker at Ball State University, alleged that she was subject to racial harassment, including racial epithets, slurs and inappropriate physical contact, by the individual who oversaw her daily work activities. The plaintiff alleged that this individual was her "supervisor," even though her primary responsibility was only to assign work and see that it was properly completed. As the plaintiff alleged that she had suffered tangible job detriments, she sought to hold Ball State strictly liable for the "supervisor's" conduct.
After the plaintiff exhausted her administrative remedies, she filed a lawsuit in the Federal District Court. Ball State moved for summary judgment on the basis that because the alleged "supervisor" did not have the authority to hire, fire, discipline, demote, transfer or set compensation, Ball State was not strictly liable for her actions. The Court granted Ball State's motion for summary judgment, holding that the "supervisor" did not have sufficient authority over the plaintiff to be considered a supervisor for purposes of the Farragher and Ellereth analysis. The 7th Circuit Court of Appeals affirmed the district court decision, joining several other Circuit Courts (including our own 1st Circuit Court of Appeals) in holding that an individual is not a supervisory employee if their duties are only those of a "lead" person, without the authority to hire, fire, discipline, demote, set compensation, etc. This decision set up a clear split between Circuit Courts, as the 2nd, 4th and 9th Circuits have adopted the broader definition of "supervisor" favored by the EEOC, which would include any person exercising the ability to direct the work of others.
As a practical matter, employers should consider expanding the scope of employees who are included in the enhanced anti-discrimination training for supervisors. Even if the group included in your training turns out to be over-inclusive, those lead persons who receive enhanced training could play an important role in communicating to employees that the employer is committed to equal employment opportunity and a harassment free workplace.
¹ These cases also provide that employers are liable for the harassing conduct of non-supervisory employees, whether or not it involved a tangible job detriment, only when it could be shown that the employer knew or should have known that the harassment was occurring and failed to take appropriate remedial measures.
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This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Devine, Millimet & Branch, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.
© Copyright 2013 Devine Millimet & Branch, Professional Association
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