H E A L T H L A W Insulating Your Practice from Sexual Harassment Claims ■ JOHN SHUFELDT, MD, JD, MBA, FACEP M erriam-Webster’s Dictionary of Law describes sexual ha- rassment as a form of employment discrimination con- sisting of unwelcome verbal or physical conduct di- rected at an employee because of his or her sex. Quid pro quo sexual harassment occurs when a condition of future or current employment is predicated upon fulfilling sexual demands. Finally, hostile environment sexual harassment occurs when the harassment has the effect of interfering with the victim’s work performance or creates an intimidating, hostile, or offensive environment that affects the victim’s psychologi- cal well-being. Sexual harassment claims and lawsuits are among the most challenging and devastating claims affecting providers both in their capacity as an employer and as a healthcare pro- fessional because no matter how unsubstantiated the claim is, the aftermath can have significant recriminations both per- sonally and professionally. As with medical liability issues, you can help insulate yourself and your practice from sexual harassment claims by taking a few simple steps. Sexual Harassment Policy Most important, ensure that your office has a sexual harassment policy; every multiperson office should have one—in writing. The document should delineate a zero-tolerance policy toward the offensive conduct and should instruct the victim to report any instances of misconduct immediately to their supervisor or to you. The policy should be part of the new- hire handbook and should be kept up to date. Consult an attorney who specializes in employment law to ensure your policy contains the necessary information. Post lit- erature detailing the laws and policies about sexual harassment and discrimination on the law in the employee break room. Also, provide handouts about sexual harassment to your employees. These actions will help you defend against a sexual harassment claim which the claimant believes occurred in your office. Under federal law, an employer is strictly liable for sexu- al harassment committed by the supervisor or manager of the claimant. Essentially, this means that the employer is liable in a sex- ual harassment claim decided against a manager or supervi- sor. Strict liability of the employer can also occur when one coworker sexually harasses another coworker if the employ- er is aware of it and does not take appropriate action. Therefore, as the employer, you must investigate and document in writing all reports of sexual harassment. The documentation should include the findings of your investi- gation and what, if any, corrective action you will be taking. It is often a challenge to maintain a professional working envi- ronment in a close-knit, high-stress environment. You will open yourself up to significant liability if the culture of your office per- mits or encourages off-color jokes, sexually suggestive comments or photos, or access to adult-content Internet sites. Sexual harassment claims can also arise from allowing employees to work in an environment that is both objective- ly and subjectively offensive to a person of reasonable and ordinary sensitivity. This will become a problem if a dis- gruntled employee decides to make it an issue. Workplace Romance John Shufeldt is the founder of the Shufeldt Law Firm, as well as the chief executive officer of NextCare, Inc., and sits on the Editorial Board of JUCM. He may be contacted at JJS@shufeldtlaw.com. 32 Given the amount of time spent at work, office romances are not an uncommon occurrence. Persistent demands for a date or relationship made by one employee which are not favorably received by another, however, are frequently the genesis of sexual harassment claims. JUCM T h e J o u r n a l o f U r g e n t C a r e M e d i c i n e | Fe b r u a r y 2 0 0 8 w w w. j u c m . c o m