Little Health Law Blog
Healthcare employees filed the fourth largest number of sexual harassment claims with the EEOC from 2005 to 2015, according to Jocelyn Frye, a senior fellow at the Center for American Progress. As a result of the #MeToo movement, many healthcare organizations in Georgia are rethinking their sexual harassment policies, and employees are educating themselves on their rights. This post examines Georgia employees’ rights and how Georgia employers can reduce sexual harassment in the workplace.
Georgia Discrimination Laws
Georgia’s employment discrimination laws protecting employees in the private sector are limited to age, wage, and disability discrimination. Although Georgia’s Fair Employment Practices Act covers a wider range of protected classes, it only applies to state agencies with fifteen or more employees.
What Options Are There for Healthcare Workers Subject to Sexual Harassment?
Federal anti-discrimination laws, enforced by the Equal Employment Opportunity Commission (EEOC), protect public- and private-sector employees. The prohibition against sexual harassment arises under Title VII of the Civil Rights Act of 1964. Title VII, which applies to employers with 15 or more employees, makes it illegal to discriminate against anyone on the basis of “race, color, religion, national origin, or sex.” In 1980, the EEOC issued regulations at 29 C.F.R. § 1604.11 declaring sexual harassment a violation of Title VII. In 1986, the Supreme Court upheld the regulations in Meritor Savings Bank v. Vinson.
Currently, 29 C.F.R. § 1604.11(a) defines harassment as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” when one of the following are met:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
- such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Furthermore, an employer may be responsible for acts of sexual harassment by employees and non-employees when the employer “knows or should have known of the conduct,” unless the employer can show she took “immediate and appropriate corrective action.”
The regulations state that in determining the legality of conduct, the EEOC will look at the totality of the circumstances and make decisions “on a case by case basis.” 29 C.F.R. 1604.11(b). Thus, sexual harassment cases can be lengthy and costly.
Sexual harassment claims arise when the conduct is “so objectively offensive as to alter the conditions of employment.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Altered conditions are only found if the harassment results in a tangible employment action, such as demotion, termination, or reassignment; or when the harassment is sufficiently severe or pervasive as to create a hostile work environment.
What Can Healthcare Employers Do to Reduce Sexual Harassment in the Workplace?
According to 29 C.F.R. § 1604.11(f), “Prevention is the best tool for the elimination of sexual harassment.” Preventative steps may include “affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under [T]itle VII, and developing methods to sensitize all concerned.”
Preventative efforts may not only reduce sexual harassment in a workplace but may also be used to support an employer’s affirmative defense for hostile work environment claims. The affirmative defense, known as the Ellerth-Faragher affirmative defense, is only available in vicarious liability cases where the alleged harm is limited to hostile work environment. An employer can prove the affirmative defense by proving that (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Creating a comprehensive sexual harassment policy can be valuable in protecting your employees and organization. The Medical Group Management Association’s December 12, 2017 poll found that at least 12% of healthcare organizations still did not have a sexual harassment policy. On its own, having a policy is not enough. The policies must comprehensively detail the complaint process and explain how the complaint will be handled internally. The healthcare organization must also educate everyone in the organization about the policies and procedures. Finally, the organization must promptly investigate and respond to all allegations.
If you are an employer seeking help with a current dispute or advise creating a comprehensive sexual harassment policy, please email us at info@littlehealthlaw.com or contact us at our office closest to you. Read about our lawyers’ experience in employment retaliation and discrimination matters.