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Office policies on sexual harassment can help prevent claims -- from men or women

A column about keeping your practice in good health

By Victoria Stagg Elliott is a longtime staff member. She covered practice management issues and wrote the "Practice Management" column from 2009 to 2013. She also covered public health and science from 2000 to 2009. Posted June 7, 2010.

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Workplace sexual harassment complaints are decreasing overall. But men increasingly are the ones saying they have been victimized.

The medical setting is not immune. The image of the male physician or administrator running a practice staffed primarily by women still may be true in some cases, but evolving workplace roles have shaken things up significantly.

For example, the University of Texas Medical Branch at Galveston recently settled a case in which a male practice manager alleged that he had been sexually harassed by his female boss, and had been demoted when he complained. Due to a confidentiality agreement, none of the involved parties could comment.

Those who run medical practices are advised to take a second look at their policies on sexual harassment. Experts say that preventing potentially expensive lawsuits requires many of the same actions that should be taken when women are targeted.

"You should not worry about what variation it is," said Gregory Grant, co-chair of the employment and business litigation practice group of the law firm Shulman Rogers in Potomac, Md. "But you should keep an open mind that harassment can come in a variety of ways, including those we didn't think about before."

The number of sexual harassment complaints filed with the Equal Employment Opportunity Commission, declined from 15,889 in 1997 to 12,696 in 2009. The proportion filed by men, however, grew from 11.6% in 1997 to 16% in 2009. The agency does not collect data on the gender or sexual orientation of the alleged harassers, although those who have worked on these cases say the accused include men and women, gay and straight. These complaints are filed under Title VII of the Civil Rights Act of 1964, which covers companies of 15 employees or more. State laws may apply to even smaller businesses.

Experts suspect that the number of complaints from men are increasing because of a 1998 Supreme Court decision stating that Title VII also applied to same-sex harassment. Also, the recent economic downturn means that people are more likely to fight for the jobs they have, rather than just find new ones.

Sexual harassment is generally defined as unwelcome sexual conduct that either becomes a condition of employment or creates a hostile work environment. This can include demands for sex, unwanted touching, demeaning bawdy comments or the exhibition of pornographic images. Subtle forms of sexually charged behavior can become harassment if they are repeated, especially after those carrying it out have been asked to stop.

"Sexual harassment is not about attraction to that particular person," said Patricia Nemeth, a managing partner and president of Nemeth Burwell in Detroit. "It's about an abuse of power."

Experts advise practices to have a written policy that specifically addresses sexual harassment and prohibits retaliation if someone speaks up. The cases that have resulted in the largest settlements usually included charges of retaliation for complaining, such as a demotion or firing.

"Where people have run into problems is when they did not take the concerns seriously," Nemeth said.

Sample policies are usually available from medical societies or state government agencies. A report from the American Medical Association Board of Trustees, issued in December 2004, includes model policies.

A lot of small- to mid-size medical practices don't have such policies, but if your practice does have a policy and employees are made aware of it, "you can handle issues before they become big problems," said Beth A. Pletcher, MD, chair of the American Academy of Pediatrics Committee on Pediatric Workforce, who has written papers on this issue.

Policies should include a way for employees who feel they have been subject to unacceptable sexual behavior to voice their concerns confidentially. Larger companies usually will have employees go to human resource departments, but many medical practices are too small to have those.

Rather, experts suggest that the policy list several contacts, such as physicians who run the practice, office managers or an outside legal counsel. This reduces the risk that the only individual an employee with concerns can turn to is the person doing the harassing. Having no recourse also can lead to a large judgment against a practice.

"It needs to be someone trustworthy who believes that this is important," Dr. Pletcher said.

The policy should be backed up with training, which may be required in some states. Various webinars are available, and some are even free. Many lawyers working with medical practices also might be able to provide such training.

"Have a policy in place, and let people know you take it seriously," said Alan Lesnewich, a partner with Fisher & Phillips in Murray Hill, N.J. (See correction)

Any complaint should be investigated. If a problem is identified, it may be possible to address the issue with the perpetrator. "The person who is doing it may be oblivious to the fact that they are upsetting someone," Dr. Pletcher said.

Taking these steps may reduce the risk that a situation will end up in the courts. And even if the case does progress to this point, a practice that has taken appropriate action is less likely to be subject to fines and judgments, experts said. This is particularly important because physicians who own practices can be liable for their employees' behavior.

"Employers should encourage people to report it early, and then they are much less likely to be liable," said Ernest Haffner, a senior adviser with the EEOC.

Victoria Stagg Elliott is a longtime staff member. She covered practice management issues and wrote the "Practice Management" column from 2009 to 2013. She also covered public health and science from 2000 to 2009.

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External links

"Addressing and Preventing Sexual Harassment in Medicine," American Medical Association Board of Trustees report, December 2004 (link)

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Correction

This column originally inaccurately identified the location of Alan Lesnewich, a partner with Fisher & Phillips. While the firm is based in Atlanta, he is based in Murray Hill, N.J. American Medical News regrets the error.

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