Preventing Sexual Harassment in the Workplace

1. Preventing Sexual Harassment in the Workplace Mary A. Smith, DNP, APRN Starkville Orthopedic Clinic Starkville, Mississippi

2. Presentation Objectives • Define sexual harassment • Identify sexual harassment • List the undesirable consequences of sexual harassment • Discuss ways to prevent sexual harassment in the workplace

3. Mindful Considerations • Need to involve direct managers, HR or legal • Need to involve direct managers • Need to involve legal counsel • Need to make honest attempts to mitigate situations that are inappropriate, harmful, or threatening to others • Take actions of mitigation sooner rather than later to prove honest intentions • Don’t minimize complaints/red flags • Document

4. Defining Sexual Harassment Harassment (typically of women) in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks – Google Unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature – U.S. EEOC Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in adverse employment decision (such as being fired or demoted)

5. The History of Sexual Harassment • Passage of Title VII of the Civil Rights Act in 1964 prohibited sex discrimination • 1975 – Cornell University coined the term sexual harassment • 1991 – Law professor, Anita Hill, alleged that Supreme Court Justice, Clarence Thomas, sexually harassed her in the work environment. • 1991 – the Civil Rights Act was amended to allow victims a jury trial when seeking compensatory and punitive damages under Title VII • SH cases rose from 6,127 in 1991 to 15,342 in 1996 • Quid quo pro (“something for something”) cases have decreased • Hostile environment harassment (unwanted sexual comments or behaviors) has continued to increase with few legal actions taken.

6. Influence of Compensation • Example: False Claims Act • Widely known as the America’s more effective anti-fraud law with q qui tam provision – “whistleblower” • Most important toll to uncover and punish fraud • Not just health care – imposes liability on persons or companies (most often federal contractors) who defraud government programs in some way. • Most claims involve health care, military, government spending programs, pharmaceutical settlements (the largest) • 2009 amendments to the FCA by the Fraud Enforcement and Recovery Act of 2009 being signed into law

7. What did the 2009 Amendment to the FCA Do? • The Fraud Enforcement and Recovery Act of 2009 • It redefined “claim” under the FCA to mean “any request or demand, whether contract or otherwise for money or property and whether or not the U.S. has title to the money or property…..” • Amended the reverse false claims provisions to expand the liability to “knowingly and improperly avoiding or decreasing an obligation to pay the government…” • The ACA appropriated over $350 million to combat healthcare fraud with civil penalties ranging from $5,500 to $11,000 PER incident • Whistleblowers get a percentage of the settlement = health care is the most lucrative • 1986 to 2017 57 billion has been recovered = 3.7 billion in 2017 with 2.4 billion in health care • As of 2012, over 70% of federal government FCA actions were initiated by whistleblowers

8. U.S. Equal Employment Opportunity Commission (EEOC) • Federal government agency who is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (over 40 or older), disability, or genetic information. • It is also illegalto discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

9. More from the EEOC • EEOC has the authority to investigate charges of discrimination against employers who are covered by the law • Who is covered? • Employers with at least 15 employees • Most labor unions and employment agencies • EEOC has the authority to • Investigate allegations • Establish findings • Settle the charge if discrimination has occurred • If unsuccessful, they can file a lawsuit to protect the rights of individuals and the interest of the public through litigation

10. Sexual Harassment in the Healthcare Setting • Always remember that anything is possible • Healthcare worker to Healthcare worker • Healthcare worker and patient • Healthcare worker and vendor • Healthcare worker and patient visitor • Organizational culture • Code of Conduct • Anonymous, 24/7 reporting • Non-retaliation (#1 reason people don’t report)

11. Points to Consider • Foundation and culture for zero tolerance • Code of Conduct • Annual training • Supplemental training • Encourage reporting • Anonymous • Non-retaliation • 24/7 access • Formalized disciplinary approach • Conveys seriousness and zero tolerance

12. Courage vs. Comfort

13. Clarity in the Beginning • Clarity in the beginning of the hiring process • Onboarding process • Introductory meetings with administrators • Throughout the probationary period • Ideal time to stress zero tolerance of SH • Encouragement to speak out • Review the reporting process • Preface reporting being anonymous • Highlight non-retaliation and appreciation for reporting

14. Encouragement to Speaking Out • Create a culture that allows for the opportunity to speak out and report without fear of relation while also being anonymous • Remove barriers to reporting • Anonymous option • 24/7 availability to report • Well publicized and clear channel for reporting • Have a strong position with supportive language related to non-retaliation to minimize the fear of retaliation which is the main reason people do not report

15. Do What You Say • Actions speak louder than words….show them you mean business • Investigate EVERY reported incident even if the victim is not the one reporting it • If there is an “open secret” about someone who exhibits harassing behavior do not wait for a formal compliant to be filed before you investigate it • Be proactive in investigating the “open secrets” • If SH behavior has gone on for year and has never been addressed then policies need to be developed to promote a progressive disciplinary approach • The sooner, the better

16. Voice Concerns as They Arise • Administrative staff should voice concerns to the Board of Directors as they arise • Is there a trend in the organization that the BODs should know about? • Be transparent about these issues with the BODs • Determine where the disconnect is • Is there a “bad actor” or “rotten apple” • Is there a fear factor of some type? • Offer possible solutions • Is there a need for a more aggressive policy? • Does there need to be a system-wide movement to address SH? • The greater the push that comes from higher up, the better

17. Culture is the Key

18. Main Takeaways • Hindsight is always 20/20 so learn from it! • Anything that doesn’t feel right, probably isn’t! • Pay attention to subtle signs from others – some won’t be that direct or obvious • There are always early signs = situational awareness is beneficial here! • Take all claims brought forth as serious – never down play them! OR Litigation will likely ensue…..