Indecent Proposals
Nurses experiencing harassment, discrimination in the workplace are reminded that the law is on their side

By Joan Sosin, RN
February 28, 2003

It began when he started touching Laura (not her real name), an OR nurse, on the shoulder and back. The harassment quickly escalated. While Laura washed her hands at the scrub sink, Nathan (not his real name), a surgical technician, began putting his hands into her pants pockets and whispering sexually explicit suggestions into her ear.

When Laura didn't respond to his advances, Nathan became verbally abusive. Surgeons requested that they not be put in the same OR together because Nathan's behavior was so disruptive. As a result of Laura's complaint to her supervisor, Nathan was "counseled."

But the harassment didn't stop. Instead, it became more aggressive and potentially violent. Nathan began leaving messages on Laura's home answering machine and following her. Sometimes, he hid in the parking lot and jumped out to scare her.

When Laura filed a formal sexual harassment complaint with the hospital, nothing happened. No investigation, no hearing, no disciplinary action. She finally quit. Nathan is still on the job.

Nurses like Laura who face sexual harassment should know there are laws designed to protect workers from discrimination and harassment based on sex, race, national origin, religion, age or disability. Harassment that is severe or so pervasive that it creates an abusive or hostile work environment is illegal. But, as in Laura's case, that doesn't always stop it from happening.

Persistent problem

Harassment and discrimination are "alive and well," according to Nilda Peragallo, DrPH, RN, FAAN, president of the National Association of Hispanic Nurses and interim chair/associate professor in the department of behavioral and community health at the University of Maryland School of Nursing in Baltimore. "I think people are more careful about how they say it or when they say it or where they say it, but I think it still happens," Peragallo said.

Although the 2000 U.S. Census revealed that Hispanics represent 12 percent of the population, Peragallo points out they make up only 2.2 percent of the nursing workforce. "In the educational system, it's implied that minority means 'less than,' " she said, "and such a student would not do well." She has found that assumptions are made that Hispanic students cannot speak English and often are directed to associate degree programs, resulting in fewer graduates from the baccalaureate (and higher) degree programs who are prepared to enter teaching and other leadership roles.

According to a NURSEWEEK/American Organization of Nurse Executives survey, 13 percent of nurses nationwide reported they personally experienced discrimination based on gender, age or race, working as a nurse and 19 percent experienced sexual harassment in the year before the survey. Twenty-seven percent of non-Caucasian nurses experienced discrimination during that same time period.

Male nurses reported the highest rates of discrimination. Twenty-nine percent experienced discrimination based on gender, age or race and 32 percent reported experiencing sexual harassment or a hostile work environment related to the conduct of physicians.

With statistics varying from region to region, nurses in New England faired best when it came to gender, age or race discrimination while nurses in Texas, Oklahoma, Louisiana and Arkansas had the highest rate (20 percent). Nurses in the West-California, Nevada, Oregon and Washington-came in a close second at 16 percent.

Hazy definition

"Federal laws prohibiting discrimination don't prohibit just anything that somebody might be offended by," said Dianna Johnston, assistant legal counsel at the Equal Employment Opportunity Commission in Washington, D.C. Asking a co-worker out on a date is not necessarily harassment, although some people in some situations might be offended by it. It may rise to the level of harassment, however, if the requests persist over a period of time, particularly after the person has asked that it stop.

"One of the things the courts try to do is balance the need to protect employees from abusive work environments and protect employers from employees who are hypersensitive," Johnston said. "There's no magic bright line that distinguishes abuse that is illegal from something that is merely obnoxious or offensive."

Surrounding circumstances are crucial. In Oncale v. Sundowner Offshore Services Inc., the Supreme Court distinguished between a football player being patted on the buttocks by a coach after a winning play and similar conduct in an office setting. Using religious or ethnic slurs will probably cross the line fairly quickly. But even in some cases where the employer has used a racial slur, courts still found no race discrimination, Johnston said, because either there were too few instances or it was not considered severe or pervasive enough to create an abusive work environment.

"It's hard to get a measure [on harassment]," agreed Lynn Wildman, RN, a labor representative for the California Nurses Association. She believes, however, the line is crossed when a nurse feels threatened or uncomfortable about something said or done. "What makes it difficult to define," Wildman said, "is that sometimes whether or not behavior is harassment depends on how the person on the receiving end perceives it."

Looking at solutions

"Sexual banter was the norm when I worked in the OR and it probably still is in a lot of places," said Maggie (not her real name), a manager of operating room services, "but now, as the supervisor, I don't tolerate it." She has filed complaints with the human resources department so staff members don't have to. "Once I followed through on a couple of situations, it hasn't been much of a problem," she said.

Maggie acknowledges that her success wouldn't be possible without support from hospital administration and the chief of the surgical division. She is quick to point out, however, that she is helping them enforce discrimination and harassment laws and believes it's one of the things that helps her retain staff nurses.

"Even if [administration] doesn't necessarily understand how harassment offends and belittles people, they usually understand staffing and shortages," she said, "and sometimes you have to put it in terms of the bottom line."

The Oregon Health & Science University in Portland has dedicated a separate staff to oversee its policies on prohibited discrimination. "We basically have zero tolerance for any prohibited discrimination in the workplace and we expect a prohibited harassment-free workplace or environment," said Jilma Meneses, director of the Affirmative Action and Equal Opportunity Department.

Under university policy, employees who claim discrimination based on gender, race or age have the option of bringing it to the attention of their immediate supervisor or going directly to the department, which is responsible for investigating and making recommendations, ranging from counseling and training to termination.

"Among the tips we distribute [to employees]," Meneses said, "is the recommendation that they speak up at the time of the incident in a clear and direct manner."

As an alternative, her office can be contacted to inform alleged offenders that they are potentially violating policies. "Our hope is that they can resolve it, but we're not expecting them to resolve it on their own," she said. "That's why this department is here."

An anonymous complaint also can be filed through the university's compliance hotline.

Meneses finds that discrimination sometimes continues unchecked because no complaint is made.
"If they come to this office, we will investigate it," she said. "However, if we don't know about it and they keep it to themselves, then obviously we aren't going to investigate it. We don't hunt for cases."

Federal (and state) laws require that employers have a place for people to report complaints. Meneses hopes that university employees understand that they have one. "This office will address all complaints regardless of the person bringing forward the concern," Meneses said, "and it doesn't matter to us if the person is a nurse or a janitor or a renowned scientist. We will look at all complaints and take all matters very seriously."

Contact Joan Sosin at joansosin@aol.com