Daniel Levy Featured in Law Review Q&A, "In the #MeToo Era, How Can Hospitals Prevent Harassment and Discrimination?"

Workplace sexual harassment has a long history in health care. A 1994 report found that 70% of female staff nurses reported sexual harassment by patients or coworkers. In 2016, a JAMA study found that nearly one-third of women in academic medical faculties reported having experienced workplace sexual harassment. And it's not limited to females. Discrimination and harassment have inflicted all types of health care professionals and occurred across health care facilities.

Over the last few months, as more allegations of workplace sexual harassment have come to the fore, providers have asked Advisory Board for best practices regarding implementation and enforcement of anti-discrimination, and in particular anti-sexual harassment, policies.

To learn more about the challenges health care employers face in this space and how they can overcome them, we sat down with Dan Levy, a Partner at Epstein Becker Green. …

Q: What legal obligations do health care employers have to prevent and eliminate workplace discrimination?

Levy: Like any other employer, hospitals and other health care employers have an obligation to provide their employees with a workplace that is free from discrimination, harassment, and retaliation. Employers' obligations related to claims of harassment, discrimination, or retaliation begin long before an employee makes an allegation of wrongful conduct.

Health care employers should ensure that their equal employment opportunity (EEO) policies cover all of the Title VII, ADEA, ADA, EPA, GINA, FMLA, USERRA, and applicable state law protections, and that all employees are aware of what constitutes discrimination/harassment.

Hospitals and health care employers also have a responsibility to protect against third-party sexual harassment. The EEOC has long maintained that employers may be liable under Title VII for sexual harassment of employees by business associates. Under EEOC guidelines, the focus is on whether the harassment occurred in the workplace (or logical extensions of the workplace, such as during work-related business trips). Responsibility for the acts of non-employees arises when the employer knew, or should have known, of the objectionable conduct and fails to take prompt and appropriate corrective action. As hospitals think about broadening their clinical networks, we recommend they include adequate anti-discrimination and anti-harassment clauses into their contracts.

Moreover, though harassment by patients is not always protected by employment discrimination laws, providers must nevertheless prepare for these events because they undoubtedly affect employee engagement and workplace culture.  Reports of harassment by patients have increased in the past several years. Hospitals and health care employers should, therefore, establish a policy that addresses harassment by patients and protocols to enforce that policy.

Finally, though tangentially related, it's important for providers to be aware of anti-discrimination protections afforded to patients. Recently, DOL and HHS implemented regulations protecting LGBT patients from discrimination.