By Karen Markus, JD, RN
Illustration by Malcolm Garris/PhotoDisc
March 1, 1999

The impeachment proceedings against President Clinton focused national attention on the subject of sexual harassment. Federal laws require employers to ensure that their workplaces are free of sexual harassment, but understanding just how to comply with these laws can present problems.

On one hand, employers have been sued for responding inadequately to sexual harassment claims. On the other hand, employers have also been sued by employees claiming they were wrongfully terminated on the basis of accusations of sexual harassment. Last year the U.S. Supreme Court decided cases relevant to nurses that help clarify employers’ liability for sexual harassment in the workplace.

What is sexual harassment?

According to the Equal Employment Opportunity Commission (EEOC), in order for sexual conduct to rise to the level of unlawful sexual harassment, it must be both unwelcome and regarded by the victim as offensive.¹ Examples include sexual propositions or threats, remarks about sexual orientation, sexual gestures, suggestive or derogatory remarks or jokes, the display of suggestive pictures or drawings, and unwelcome touching.

The EEOC describes two categories of sexual harassment. The first, called quid pro quo sexual harassment, occurs when submitting to or rejecting unwanted sexual conduct is the basis for an employment decision. A single sexual advance linked to granting or denying employment opportunities can be enough to trigger a quid pro quo claim.

Last year the U.S. Supreme Court held that an employer can be strictly liable for damages when a supervisor takes a specific job action against an employee who rejects the supervisor’s sexual advances.²Strict liability in this situation means that employers are liable even if they did not know, or have reason to know, of the harassment. The Supreme Court reasoned that a supervisor who takes an action against an employee for purposes of sexual harassment should be viewed as standing in the shoes of the employer; therefore, the employer cannot escape liability.

The second category, known as hostile environment sexual harassment, involves repeated conduct that creates an intimidating, hostile, or offensive work atmosphere. To support a hostile environment claim, the law requires that the conduct must be so objectively offensive as to alter the conditions of the victim’s employment. The 9th Circuit Court of Appeals, which governs the federal courts in California, has held that the existence of hostile work environments must be determined from the perspective of a reasonable person of the same sex as the alleged victim.³

Harassment by employees

Employers have a legal duty not only to try to prevent sexual harassment, but to deal with it aggressively when it occurs. Employers who learn of alleged sexual harassment may be liable for damages unless they immediately conduct a thorough investigation and take corrective action. According to the EEOC, corrective action includes doing whatever is necessary to end the harassment, restoring lost benefits or employment opportunities, and preventing the misconduct from recurring.¹ Employers must also follow up to ensure that the harassment has not resumed and that there has been no retaliation against the victim for reporting the harassment.

In 1998 the California Supreme Court said that employers that discharge an employee for sexual harassment after an appropriate investigation are not liable for wrongful termination if they believe in good faith that the employee is guilty of sexual harassment.⁴ If the terminated employee brings a wrongful discharge lawsuit, the jury is not allowed to determine whether sexual harassment actually occurred, only whether the employer honestly believes it did on the basis of an appropriate investigation.

Thus, in most cases employers can defend themselves against lawsuits—by both employees alleging sexual harassment and employees alleging wrongful termination after accusations of sexual harassment—by conducting an appropriate investigation and taking corrective action.

Independent contractors

Physicians are generally independent contractors rather than employees, but institutions where they practice may be liable for their wrongful conduct under a legal theory called corporate negligence. This requires that institutions that credential physicians be responsible for screening and monitoring their behavior. Therefore, if an institution knows or should know that a physician has sexually harassed patients or employees—such as nurses—and has not addressed the problem, the institution can be liable. The physician who commits sexual harassment can also be held individually liable in a civil lawsuit.

Harassment of patients

California law gives patients who are subjected to sexual harassment by physicians, psychotherapists, and other similarly situated licensed healthcare providers the right to sue for damages.⁵To recover damages the patient must show that these situations existed:

Employers should have sexual harassment policies in writing that specify the person or department to whom such incidents should be reported. Nurses who, as both employees and licensed healthcare providers, may encounter sexual harassment in more than one context, should be aware of situations that can lead to liability for sexual harassment and take steps to report them.

Karen Markus, JD, RN, is an attorney at law specializing in legal nurse consulting. She teaches healthcare law at Santa Clara University School of Law in Santa Clara, California.

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