Dealing with Physicians' Misconduct at the Hospital

Hospitals usually have written policies that explain the concepts of sexual harassment and†hostile work environments, including descriptions of the types of impermissible conduct, and the†remedial actions that may be taken against employees pending an investigation. Despite their†legal obligation to provide a safe and harassment- free workplace, few hospitals have adopted†work environment policies that are drafted for and adopted by the medical staff. Hospitals often†fail to establish a process separate from their bylaws for investigating and curtailing a†physician's alleged misconduct. This may lead to employee complaints that physicians charged†with misconduct receive preferential treatment over other hospital workers accused of the same†behavior. In years past, hospitals were unable to swiftly investigate and remediate complaints†involving alleged physician misconduct as the due process requirements of medical staff bylaws†were an impediment, especially when a hospital lacked a harassment policy applicable to both†staff and physicians.

Hospitals have an obligation to protect employees from sexual harassment, whether the†alleged perpetrator is another employee, independent contractor, or physician. This article†explores the tension created between the fair hearing and due process rights of doctors in a†hospital setting and the hospital employer's obligation to investigate and correct a†discriminatory, sexually harassing, and/or hostile work environment arising out of physician†misconduct.The Hospital's Obligations as an Employer

As an employer with control of the workplace, a hospital is prohibited under Title VII of†the Civil Rights Act of 1964 from allowing its employees to engage in discrimination on the†basis of sex, among other types of impermissible conduct. In addition to Title VII, the fair†employment practice law of a majority of states cannot limit the protections of Title VII, but may†exceed them.

Until recently, sexual discrimination claims were divided between quid pro quo claims†(in which sexual favors were demanded in return for employment considerations or in order to†prevent adverse employment consequences) and "hostile environment claims" (involving severe†or pervasive sexually harassing conduct). See Meritor Savings Bank, FSB v. Vinson, 477 U.S.†57, 65 (1986). After Meritor, plaintiffs were encouraged to couch their complaints in terms of†quid pro quo claims because courts of appeals held that, if the plaintiff established a quid pro†quo claim, the employer was subject to vicarious liability. Burlington Industries, Inc. v. Ellerth,†524 U.S. 742 (1998).

Because the Ellerth plaintiff had not suffered an adverse employment action, but only†unfulfilled threats of such, the Court held that her claim should be categorized as a hostile work†environment claim, which required a showing of severe or pervasive conduct. The Court†accepted the district court's finding that the plaintiff had proved "severe or pervasive" harassing†conduct. It then held that when discrimination is proved, the factors discussed below, and "not†the categories quid pro quo and hostile work environment, will be controlling on the issue of†vicarious liability." Ellerth, 524 U.S. at 754. The Court affirmed the court of appeals' reversal†of summary judgment that had been granted for the employer, holding that the plaintiff should have the opportunity to prove she has a claim for which the employer is vicariously liable. Id. At 766.

The Ellerth decision means that employers such as a hospital may be vicariously liable†for a sexual harassment claim by an employee, even where the alleged harassment took the form†of a hostile work environment rather than quid pro quo sexual demands. The labels are not†controlling for purposes of establishing employer liability. The Supreme Court formulated this†test (id. at 765):

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages. . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The Court concluded, however, that no affirmative defense was available when the supervisor's†harassment culminates in a tangible employment action such as discharge or undesirable†reassignment.

Bear in mind a fundamental distinction between physicians and others in the hospital†setting. Doctors typically are private practitioners, not employees of the hospital; they are said to†enjoy "privileges" to practice at the hospital. On the other hand, non-physicians in the hospital,†such as nurses, medical technicians, administrators, and orderlies, are usually direct employees1of the hospital. While an increasing number of physicians are employed by hospitals, action in†response to their misconduct and the hospital's obligation to protect the worksite are not†employment-dependent. Hospital employees subjected to severe or pervasive sexual harassment†by a non-employed physician with staff privileges may seek to have the hospital held vicariously†liable for the physician's alleged harassment. The hospital has a duty to remedy an alleged†abusive condition created by a doctor even though he or she is not an employee but simply has†privileges in the hospital. The same duty to investiga te and remediate arises as in co-worker or†third-party harassment. Under 29 C.F.R. ß1604.11(e), an Equal Employment Opportunity†Commission regulation, employers may be liable for sexual harassment perpetrated by†nonemployees "in the workplace, where the employer . . . knows or should have known of the†conduct, and fails to take immediate and appropriate corrective action."

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