By Jonathan D. Ash
Running a successful plastic surgery practice is hard enough, but in the #MeToo era, it can become harder if you let it. Many doctors surround themselves with nurses and staff that they trust and are comfortable working around. But when people become too comfortable, language can get loose and certain lines can be crossed. In a business that focuses largely on beauty, it is not a stretch to envision comments that are, or can be perceived as, sexual in nature. The light-hearted comments, or jokes that are meant as harmless, can be received as hostile. It is critically important that your practice take proactive measures to address this behavior before it becomes a problem. Successful practices cannot sit idly by while the world around them changes. Proactive approaches are essential to prevent all forms of harassment.
Harassment in the workplace is not new. What is new in the #MeToo era are employees who are hyper-aware of anything that can potentially give rise to a claim. There is a heightened focus on workplace behavior from both society and the government. As a result, employers should insist that management and employees alike are educated about what constitutes actionable harassment, how to prevent harassment and what the employer’s expectations are in the event that harassment occurs. This can best be accomplished through detailed and thorough employment policies that are then reinforced through interactive training.
What Constitutes Sexual Harassment
As an initial matter, it is important to understand what constitutes sexual harassment under the law. Generally, there are two forms of sexual harassment: quid pro quo sexual harassment and hostile work environment harassment. The first form, which is much less common, involves offering an employment benefit (i.e. raise, promotion, bonus) in exchange for a sexual act. It can also include making continued employment contingent upon the performance of a sexual act. The sexual act at issue could be something vulgar or explicit, or it could be as simple as a date or other unwelcomed advance. When the rejection of that advance impacts the employee’s terms and conditions of employment, that is quid pro quo sexual harassment.
The second form of harassment is hostile work environment harassment. That occurs when sexual harassment becomes severe or pervasive such that it has the effect of altering the terms and conditions of the employee’s employment. This can include visual conduct (i.e. leering, gestures, displaying pictures or sexually suggestive objects), verbal conduct (i.e. derogatory or degrading comments, jokes, vulgar language), or physical conduct (i.e. touching, groping, blocking movements). The conduct must be unwelcomed. Under this standard, a single severe instance can rise to the level of actionable harassment, or a series of smaller incidents can meet the standard. The question is whether a reasonable person would consider the act offensive.
Importantly, some places have made the standard for harassment much lower. For example, practices located in New York City must comply with the New York City Human Rights Law, which has a much broader standard for harassment. Under that law, an employee need only prove differential treatment on the basis of their gender (or other protected classification). It does not have to be severe or pervasive, but rather according to the Court, something more than “petty slights or trivial inconveniences.” This makes such claims much more difficult to defend and makes employer vigilance in preventing harassment all that more important.
Sexual Harassment Policies in a Plastic Surgery Practice
For those states with a higher concentration of plastic surgery practices, like New York and California, harassment policies and interactive training have recently become mandatory requirements under the law. In New York, every employer must provide sexual harassment prevention training. That training must be interactive, meaning that employees have the ability to ask questions. It must explain the law and the types of conduct that would constitute unlawful harassment. It must advise employees of their rights to redress sexual harassment and the potential remedies for doing so. California has a similar requirement for employers with five or more employees.
A best practice is to conduct training of rank-and-file employees separately from managers and supervisors. The reason is simple: the employer’s expectations of the two groups are significantly different. Managers and supervisors can create liability for the employer whenever they harass another employee or become aware of harassment and fail to take prompt remedial measures. That makes it critical that managers and supervisors understand their role and expectations.
Along with training, every employer must have a sexual harassment prevention policy. The policy must, among other things, prohibit sexual harassment, provide examples of prohibited conduct, include information about available remedies, provide for a detailed complaint procedure in the event that harassment occurs, include a procedure for prompt investigation of a complaint, provide for disciplinary consequences in the event that harassment is confirmed, and prohibit any form of retaliation against the complainant.
Even in places where having a policy is not mandatory under the law, there really is no excuse to be without it. The key is for employees to understand that they work in a place where harassment will not be tolerated. It is fair to say that the less employees believe that harassment is taken seriously, the more likely it is to occur.
Guarding Against Sexual Harassment
In addition to policies and training, there are other practical steps that an employer can take to guard against a harassment claim. Even a practice that does everything right can still get hit with a claim. That is why it is a good idea to carry Employer Practices Liability Insurance (“EPLI”) along with your regular insurance policy. EPLI can provide coverage and defense against a claim of harassment. This investment can seriously limit the exposure and the headache that such a claim can cause. The defense of such a claim can be extremely costly and can create a significant disturbance to your practice. Also, a successful claim can result in an award of compensatory damages, emotional distress damages, punitive damages, and attorneys’ fees for the plaintiff. EPLI can provide valuable peace of mind.
In sum, medical practices are not immune from harassment claims, and in the #MeToo era, it is more important than ever to address harassment with employees. Plastic surgery practices in particular, with an emphasis on beauty, could be even more at risk than others. Take steps to mitigate that risk by updating your employment policies and providing annual interactive training for all employees. Having close and comfortable relationships with your employees can make for a positive workplace environment, but make sure that it stays that way by being proactive.
Jonathan D. Ash is a partner in the Labor and Employment Department of Fox Rothschild LLP, where he helps clients in a variety of industries identify and solve legal issues in the workplace. He can be reached at [email protected].