I co-authored this document with Victor Craven, a grad student at IUPUI’s O’Neill School. I am sharing this in the hopes that it will help others who need to develop policies for a hospital.

RUNNING HEAD: HUMAN RESOURCE PRACTICES                                               

 Human Resource Practices in the Health Care Setting to Mitigate Sexual Harassment  Felix Rippy and Victor Craven

Indiana University Purdue University Indianapolis 

The Scope of the Problem and Applicable Laws

This study examines (and attaches as appendices) the sexual harassment policies of two major health care providers, one from the public sector (IU Memorial Hospital) and one from the private sector (Hospital

Corporation of America).  The public and private sector policies are found herein to be remarkably similar (and remarkably brief) and each would benefit from the suggested additions and improvements outlined in this paper.  The suggested additions below update the policies to stay abreast of the changing and expanding law governing sexual harassment in both sectors, while also endeavoring to balance human resource practices with the realities of workplace interpersonal relationships.  In sum, this study examines the problem of sexual harassment as unique to the health care industry applying the primary law that attempts to alleviate this problem, and then the study suggests possible human- resource-related solutions in the form of additional wording for employee manuals suitable for use in either sector.

It is unsurprising that eighty-five percent of respondents to a recent Business Insider survey believe that an employee should be able to have consensual sex with co-workers (Blodget, 2013), given that an even higher percentage of respondents (i.e.,90%) say such relationships are completely unobjectionable if the employees involved do not work directly together. After all, the 1992 National Health Life Survey of 3,432 surveyors revealed that fifteen percent of marriages and eighteen percent of cohabitations originated in the workplace (Laumann, 1994 at xxxi, 235). More recently, ninety-two percent of workers are adamant that sexual liaisons should not have to be reported to an employer, and forty percent of employees’ state that a sexual relationship is tolerable with a direct subordinate (Blodget, 2013). Finally, fifty-four percent of respondent employees admit to having had sex with a co-worker or colleague and thirty-five percent of those admit that the encounter was with a direct subordinate (Id.).

Regarding non-marital relationships, work is the fourth most popular place to meet companions. Ten

percent of respondents met their current interest at work, according to a recent survey (Kerley, 2016). This percentage is higher than the combined percentage of those who meet their romantic partners through family and through church, and trails only meeting through friends, online, restaurants, and bars (Id.). Contrastingly, workplace sexual harassment remains a large issue from a morale, efficiency, and liability. Forty percent of female workers report an incident of workplace sexual harassment within the last two years, a rate that does not appear to be declining over time (Grossman, 2003).

 Some studies estimate that on average, companies (i.e., Fortune 500) lose $6.7 million annually due to

sexual harassment (Grossman, 2003 citing Blakely et al., 1998 and Sandoff, 1988). The health care industry, particularly public sector, have been effected by discrimination claims, with the largest employment verdict in American history (i.e., $167.7 million) against a hospital in California (Chopourian v. Catholic Healthcare

West, 2012). The hospital environment exacerbated the Chopourian case, as the Plaintiff’s lawyer detailed “It’s not bad enough to come into work and get your butt slapped, get sexually propositioned and suffer rude and crude behavior, but surgeons were also endangering the lives of patients” (Stephenson, C., 2012). In short, the public and private health care sectors have both been disproportionally impacted by sexual harassment liability; this extreme liability against health care providers has been primarily incurred under Title VII.  

The inscrutable and conflicting nature of sexual harassment liability case law is difficult for human

resource managers to comprehend, thereby contributing to the issue. For example, even employees who are not involved in the discriminatory relationship can sue in some jurisdictions, holding that employees not involved in a consensual relationship can sue because of their own lack of advancement (Miller v. Dep’t of Corr., 115 P.3d

77 (Cal. 2005). However, “sexual favoritism is discrimination against all employees not providing sexual favors,” which is not sufficient legal grounds for a suit in other jurisdictions. In many jurisdictions, the only person with just cause is the actual victim of the harassment, not other coworkers, for example, where a superior accepted a sexual favor from an employee, another worker has been denied a promotion was not a victim of sex discrimination within the meaning of Title VII) (Becerra v. Dalton, 94 F.3d 145) (4th Cir. 1996).  

Similarly, the effect of the patient’s preferences (i.e., discrimination) has been a contributing factor. In Indiana, it has been held that health care providers may not oblige their patient’s racial prejudices (Chaney v. Plainfield Healthcare Center, 612 F. 3d 908 (7th Cir., 2010). 

Yet, in EEOC v. Mercy Health Center, 1982 WL 3108, at 3 it was held that sexual preferences as

opposed to racial preferences were allowed in a hospital delivery room were permitted, and in Jones v. Hinds General Hospital and Backus v. Baptist Medical Center, courts permitted the sex-based hiring of nurses and orderlies based on the employers’ beliefs that patients would object to personal care from persons of the opposite sex. In addition to, Olsen v. Marriott International, Inc ruled that a massage therapist sexual discrimination suit based on customer preference is not legal, and in EEOC v. Hithe court held that weight loss counselors may not be chosen based on sex despite preferences of patients. 

There are two main legal conclusions to be drawn from the aforementioned cases and anti-sexual

harassment statutes that they interpret. First, hospitals and health care institutions must remain up-to-date on laws that prohibit sexual harassment. Second, the primary statute that these cases interpret applies to both sectors (i.e., federal-level) Title VII of the Civil Rights Act of 1964, which are crucial to understanding sexual harassment liability in health care settings (i.e., Achampong, 1999). 

Common Mistakes in Health Care Human Resources’ Manuals and Solutions

What are the latest errors that healthcare facilities have made in their efforts to stay abreast and apply

Title VII and sexual harassment law? This paper has examined the sexual harassment policies of Hospital Corporation of America (i.e., a privately-owned health care entity) and of Indiana Memorial Hospital to determine what segments of sexual harassment law are being circumvented to expose these institutions to liability. A fundamental issue in most healthcare providers (i.e., public and private-based) sexual harassment policies is the failure to explicitly mention that the signing employee must cooperate in any investigation. 

Similarly, as the insured would be legally obligated to cooperate with their own defending insurer.  

The Dunkley case, in North Carolina, involved a health center employee who simply disappeared and

refused to cooperate, and thus a default judgment was taken against the employee, therefore exposing the hospital to liability. Although both policies require employee signatures acknowledging receipt, the policies examined in this study do not explicitly remind the signing employee that, if the hospital elects to defend them as an insured, that they consent to such representation and further agree to cooperate with any investigation

(Dunkley v. Shoemate, 1999). Only the public institution’s human resources manual mentions a prompt investigation of allegations of sexual harassment. In fact, the Dunkley case mentioned above implies that the employer should at least mention in a policy that a prompt investigation will ensue from any allegations of sexual harassment and that all employees are expected to consent to cooperate in an investigation. Therefore, human resource polices should explicitly defines employees’ obligation to cooperation in the event of an

investigation and any subsequent litigation. 

Similarly, neither health care provider’s sexual harassment policy requires reporting of sexual

harassment nor prohibits retaliation against those who do such reporting. One of the bases for the $167.7 million Chopourian verdict was that the hospital retaliated against a reporter of sexual harassment. The effect of the Chopourian decision is not only that retaliation against a reporting employee is prohibited, but also that reporting is an obligation of the purported victim and that failure to report could result in loss of a claim. Currently, most policies cast a largely vague interpretation (i.e., on its face), of what sexual harassment may include “robbery” but fail to instruct that sexual harassment does include same sex-oriented harassment.  Subsequently, policies should require or include (i.e., on pain of total loss of a claim) the following: prompt reporting (i.e., timely, transparent, etc.), protect against retaliatory actions, explicitly mention sexual harassment does not exclude same sex or sexual oriented harassment, and define what does not qualify as sexual harassment

(i.e., cultural or ethnic presumption). Research indicates that the most likely harassers for nurses are patients

(Finnis, 1994). Although Indiana University policy does mention that “patients” are covered by the sexual harassment policy, it goes on to refer cryptically to “team members,” making it unclear to whom the policy applies to. The HCA policy limits its reference to colleagues, liability is harder to establish with patients, vendors, and third-party harassment. Therefore, polices should include vehicles to report patient, vendors, or third-party harassment. 

Public and private hospitals should consider maximizing their use of non-standard work agreement (i.e., independent contractors). Although, these non-standard work agreements (NSWA) will not necessarily insulate the hospital from employer liability, non-standard work agreements are becoming more common in human resources, in both the private and public sector, and one of the reasons is liability protection for the employer (Kearney, 2016). Ultimately, polices need to clarify the underlying possibility that clients, vendors, and thirdparties can, and frequently do, engage in sexual harassment (Zatz, 2009). For example, “the genesis of inequality matters not, what does matter is how the employer handles the problem (Dunn v Wash, 2005). 

Human resources should at least discuss social media conduct, include a “cupid clause” or “love

contract” in a personal manual (Mainiero, 2013). Despite what most employees’ think, employers should not be concerned with workplace entanglements (Blodget, 2013). Neither personal policy studied herein mentions social media, nor do they mention the fact that not all sexual harassment related complaints can be kept completely confidential, because an investigation must be conducted. 

Employees can and should, privately and among themselves, be offered the suggestion of execution of a “contract,” that might not be filed with the central bureaucracy, but which may acknowledge a consensual relationship (Mainiero, 2013). Failure to enter such a private consensual “cupid contract” might even later be insulating to the employer as a failure to exhaust administrative remedies prior to making a sexual harassment complaint. Similarly, the sexual harassment policies at issue herein do not, but probably need to, mention that for some purposes, sexual preferences, unlike racial or religious discriminations, are permissible. For example, the policies should likely mention that the sexual preference of patients as to delivery room employees are respected (EEOC v. Mercy Health Center, 1982). As are sex based preferences for nurses and orderlies where evidence exists that the patients have such a sexual preference regarding their care (D. Ariz, 1999). 

Conclusion: Personnel Policy Additions and Future Considerations

Sexual harassment remains a pressing concern for healthcare human resources (i.e., employer liability). Moreover, the public and private health care human resources policies examined herein resemble one another very closely. This should be unsurprising given that public management theorists Herbert Simon and Hal

Rainey have tacitly acknowledged that public management have much in common with private management. Public hospitals and private hospitals are more likely to resemble one another than a public hospital and public utility (Rainey, 2003).

What follows, then, is an addition to the limited one-paragraph sexual harassment policies considered in this study that should be suitable for either public or private health care organizations that remedy the deficiencies in the current human resource policies in five primary ways: first, the addition to the sexual harassment policy, at the suggestion of the above case law, applies broadly to  age, race, and other forms of discrimination and at the same time actually outlines the differences between sexual harassment and other forms of discrimination. The flaw being corrected here is that the personnel policies at issue herein seem only to be concerned about sexual harassment and not about other forms of harassment which are prohibited even more strictly, such as racial and religious harassment. The policy should encourage reporting of all forms of harassment, and indeed this is the difference between health care “harassment” and other industries. In health care settings, some sexual preferences are expressly permitted, like those for females only being allowed in a delivery room, or same sex doctors for certain medical procedures. 

Second, the new policy, as rewritten below, addresses the need to have multiple avenues of reporting, such that a victim need not report harassment to her harasser. Third, the new rubric outlined below highlights that complaints cannot be completely confidential, precisely because an investigation must be promptly conducted including interviews. The policies that were reviewed herein made no mention of investigations or limited confidentiality, and, in fact, the new policy below serves as a consent to use confidential information for investigative purposes only. Fourth, the new policy additions written below emphasize that the internal reporting procedures must be followed or the right to complain may be waived. Again, the importance of time deadlines and statutes of limitation and exhaustion of administrative remedies are not previously mentioned in the policies examined by this study. 

Fifth, interoffice relationships and social media simply were not addressed in the policies as previously written and both should be addressed. Interoffice relationships do happen and cannot be prevented; therefore, they need to be mentioned, and the same is true of social media and “friend requests.” 

Because sexual harassment, or retaliation of any kind for reporting sexual harassment, are both prohibited, taking advantage of at least one of the numerous reporting mechanisms discussed in the above policy is crucial. 

This anti-sexual harassment policy is broad and firm. First, this policy applies to any employee with any complaint regarding age, sexual, racial, religious, or national origin discrimination complaints, not merely sexual harassment. Sexual harassment is unique, however, in that not all forms of sexual preferences are harassment (a patient’s preference for all female delivery room staff is acceptable, whereas a patient’s preference delivery room staff of all one religion or race would not be acceptable). Second, any complainant may contact any member of the management team, male or female, with whom he or she is comfortable discussing the situation. Third, complaints made in this way will be dealt with immediately and will be kept as confidential as possible. Signing for receipt of this document also constitutes your consent to use confidential information, only as needed, in any such investigation. Fourth, complaints do not necessarily apply only to other employees. Any employees who have experienced conduct that they would like to or feel the need to report, either from another employee or from a contractor, patient or outsider, have an obligation to take advantage of the complaint procedure outlined above. Fifth, this policy’s procedures must be followed. In fact, a complainant may forfeit their right to complain if they do not take advantage of the above complaint procedure, up to an including barring the complainant or victim from pursuing legal action.  This prompt reporting is even more crucial because state, local and federal discrimination and harassment laws have strict timetables which must also be observed. Sixth, no employee will be penalized in any way for reporting a harassment problem.

Employees are discouraged from office romantic relationships.  Such relationships do occur, however, and if they do, the involved employees must immediately report any perceived harassment through at least one of the above discussed channels. Failure to do so may waive the claim.  Sexual harassment is not confined to the office and whether inside or outside of the office all employees must conform to the sexual harassment policies herein, and this applies to on-line as well.  On line or on-computer- screen posting of any comments or photos that would be inappropriate if actually shown in person is also prohibited.  Neither are any employees required to accept “friend” requests from any other employee, and in fact all employees should be careful about decisions about which colleagues are included as “friends” on-line, as all anti-discrimination and anti-sexual harassment policies apply to on-line behavior of all employees.  Discriminatory or sexual remarks on “private” on-line pages are prohibited regardless of whether any other employees can view said pages. 

Finally, all allegations of sexual or other harassment are investigated. While complete confidentiality cannot be promised, only those who need to know for the purposes of the investigation will be contacted or informed.  All investigative interviews will be done with a witness and documented with appropriate remedial action taken if needed and with all witnesses or participants in any investigation protected hereby from any form of retaliation. 

If the above addition to the health care personnel policies examined herein revolves the present problems under the law with such policies, where does the future lie? One question that is begged concerns sexual preferences of patients. Unlike racial discrimination by patients, which is prohibited by the Indiana Chaney case discussed above, many sexual preferences of patients are acceptable, such as a “females only” request by a patient for staff in the delivery room. What about sexually suggestive requests such as a male who requests females only for a prostate exam? Or a homosexual male who makes a similar “males only” request?

  The reality is that hospitals and health care institutions (i.e., nursing homes) frequently deal with patients who are sexually aroused by any contact from either sex, and although sexual arousal is unfortunate the staff, of course cannot deny medical care on the grounds of potential arousal. Thus, the importance of remaining up to date on the evolving laws concerning the specialized area of health care human resources and sexual harassment will continue to challenge human resources in the health care setting. Presumably, the future will be how hospitals determine which patient sexual preference requests (i.e., regarding staff) are legitimate and which are considered sexual discrimination or harassment. To conclude health care human resources professionals must stay abreast of the evolution of the law of sexual harassment. 

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Barrett v. Applied Radiant Energy, 70 F. Supp. 2d 644 (W.D. Va. 1999) (generally cited for summary judgment worthy wording in personnel policy dismissing sexual harassment claim).

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Appendix A

Hospital Corporation of America and Indiana University Memorial Hospital 

Hospital Corporation of America (a privately-owned health care entity) and Indiana Memorial Hospital

(publicly owned health care entity) sexual harassment policies, which are found at pages 16 and 55, respectively and may be found on line at https://hcahealthcare.com/util/forms/ethics/CodeOfConductTextOnly.pdf and at http://iuhealth.org/images/uploads/teammember_handbook.pdf.