| 
Federal Court of Appeals Broadly Defines Sexual Harassment, With Serious Implications Regarding Liability for Misbehavior by Disruptive Health Care Practitioners
By
Stuart W. Miller, Harry Shulman and Clark Stanton
[September 2005]
Earlier this month, in Equal Employment Opportunity Commission v. National Education Association, the federal Court of Appeals for the Ninth Circuit, which includes California and other Western states, ruled that an employer may be liable for sexual harassment even though the misconduct has no sexual content and is not, on its face, gender-related. The court added that even if the abuser “consistently abused men and women alike,” the employer nonetheless may be liable for sexual harassment because a “reasonable woman” may be more offended by the misconduct than a man. The court asserted that “the ultimate question” is whether the harasser’s “behavior affected women more adversely than it affected men,” and that the harasser’s motive is irrelevant.
Although the Ninth Circuit’s decision did not involve a health care organization, the ruling has serious implications regarding a health care organization’s liability for sexual harassment by a disruptive physician or other health care practitioner. The decision obligates employers to take a broad view of what constitutes sexual harassment, and not merely focus on whether a practitioner’s actions or words have sexual or gender-related content. Nor is the employer automatically protected simply because the practitioner is an “equal opportunity harasser” of male and female staff, because a “reasonable woman” may be more adversely affected by the behavior than a male employee.
The Court of Appeals’ decision applies only to claims asserted under Title VII of the federal Civil Rights Act of 1964. California employees typically sue under the state Fair Employment and Housing Act (FEHA) rather than under Title VII, largely because potential damages are more extensive under FEHA than under Title VII. However, in applying FEHA, California courts historically have looked to decisions relating to Title VII for guidance. California courts are therefore likely to apply this decision to FEHA claims.
The fact that the disruptive healthcare practitioner is not an employee of the victim’s employer does not insulate the employer from liability under California law. FEHA states that: “An employer may … be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contact in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the nonemployee shall be considered.”
The Court of Appeals noted that, for there to be a viable sexual harassment claim, “there is no legal requirement that the hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.” Nor must the harassing conduct be motivated by sexual desire. Likewise, an employee need not prove that the harasser “had a specific intent to discriminate against women or to target them ‘as women,’ … whether sexually or otherwise.” Rather, what counts are the “consequences or effects” of the misbehavior rather than the wrongdoer’s motivation.
In evaluating whether, under the “reasonable woman” test, the alleged harasser’s behavior affected female employees more adversely than it affected male employees, the Court of Appeals contrasted the reactions of female employees to those of male employees. The court remarked that “there is no evidence in the record that any male employee manifested anywhere near the same severity of reactions (e.g., crying, feeling panicked and physically threatened, avoiding contact with [the harasser], calling the police, and ultimately resigning)” to the harasser’s conduct “as many of the female employee’s have reported.”
With significant implications for many healthcare organizations, the Court of Appeals rejected the employer’s argument that because the harasser “had more regular contact with female than with male employees, the differential effect on women was merely incidental.” The court stated that “an unbalanced distribution of men and women in the relevant employment positions, and the fact that some men were also harassed, does not automatically defeat a showing of differential treatment.” The court explained that, “[t]o hold otherwise would allow the accident of a mostly female workplace to insulate even a culpable employer from liability.”
The federal Court of Appeals’ decision compels healthcare organizations to squarely address and remedy abusive treatment of their employees and contractors by disruptive practitioners even when (a) the misbehavior is not sexual or gender-related on its face, or (b) the abusive behavior is as frequently and severely directed to male employees as female employees, or (c) the employees in the affected work unit are mostly or entirely female.
California employers must not only take prompt and appropriate action to remedy sexual harassment. They must also, under FEHA, “take all reasonable steps to prevent harassment from occurring.” That obligation reasonably requires notifying a hospital’s medical staff leadership, as well as all practitioners and their medical groups that perform services at the hospital, about the medical center’s anti-harassment policy and the consequences of violating that policy. Hospitals and other healthcare organizations should also ensure that physicians and other practitioners periodically receive anti-harassment training.
California law requires that, by Jan. 1, 2006, employers with 50 or more employees or contractors provide a minimum of two hours of sexual harassment training for their supervisors. That training obligation is described in a DWT Employment Law Advisory Bulletin, entitled “Year End Deadline Fast Approaching to Provide Legally Required Sexual Harassment Training for California Supervisors, at http://www.dwt.com/practc/empservices/bulletins/08-05_RequiredTraining.htm. Another recent DWT bulletin, entitled “California Supreme Court Expands Protections for Workers Claiming Sexual Harassment and Discrimination,” is available at http://www.dwt.com/practc/empservices/bulletins/09-05_Protections.htm.
For more information, please contact:
This Health Law Advisory is a publication
of the Health Law Group of Davis Wright Tremaine LLP. Our purpose
in publishing this Advisory is to inform our clients and friends
of developments in health care law. It is not intended, nor
should it be used, as a substitute for specific legal advice
as legal counsel may only be given in response to inquiries
regarding particular situations.
Copyright 2005, Davis Wright Tremaine
LLP.
return to Advisory Bulletins main page
|
