AHA Human Resources Advisory: Supreme Court Draws Line On Sexual Harassment
By 7-to-2 votes in a pair of cases on the last day of the term, the justices
established a two-part test for determining liability when the harasser
warned a victim of job consequences for refusing to submit, but then
never carried out the threat. In those cases, the majority said an employer
would have to show that it used 'reasonable care' to prevent and promptly
correct any sexually harassing behavior. And second, the employer must
show that the worker unreasonably failed to prevent or correct the harm,
for example, by complaining to officials.
Implications for Hospitals and Health Systems
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Every hospital should have a sexual harassment policy that is disseminated
among all of its employees. This protects its ability to raise
the 'affirmative defense' of exercising reasonable care to prevent
and correct sexual harassment.
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Every hospital must attempt to monitor the conduct of its supervisory
employees, including training the employees about sexual harassment.
This policy also should apply to supervising physicians, one
area in which complaints have increased significantly in the
past couple of years. Prudent employers also should consider
not leaving supervisors to manage employees at remote locations
without any higher legal supervision.
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Every sexual harassment policy should include a complaint procedure
that allows a complaining employee to bypass allegedly harassing
supervisors.
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Hospitals must encourage the use of the grievance procedure by anticipating
and preventing fear of retaliation and a belief that complaints
would be futile. Employers can do this through additional education
and training for employees and by providing an open-door policy.
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Hospitals' sexual harassment policies should extend to electronic
communications, including e-mail, the Internet and Intranet.
Hospitals should describe clearly to employees what types of
activities are prohibited, the penalties for flouting the policy,
and how to report violations.
[AHA Human Resources Advisory, July 6, 1998]