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AHA Human Resources Advisory: Supreme Court Draws Line On Sexual Harassment

By 7-to-2 votes in a pair of cases on the last day of the term, the justices established a two-part test for determining liability when the harasser warned a victim of job consequences for refusing to submit, but then never carried out the threat. In those cases, the majority said an employer would have to show that it used 'reasonable care' to prevent and promptly correct any sexually harassing behavior. And second, the employer must show that the worker unreasonably failed to prevent or correct the harm, for example, by complaining to officials.

Implications for Hospitals and Health Systems

• Every hospital should have a sexual harassment policy that is disseminated among all of its employees. This protects its ability to raise the 'affirmative defense' of exercising reasonable care to prevent and correct sexual harassment.
• Every hospital must attempt to monitor the conduct of its supervisory employees, including training the employees about sexual harassment. This policy also should apply to supervising physicians, one area in which complaints have increased significantly in the past couple of years. Prudent employers also should consider not leaving supervisors to manage employees at remote locations without any higher legal supervision.
• Every sexual harassment policy should include a complaint procedure that allows a complaining employee to bypass allegedly harassing supervisors.
• Hospitals must encourage the use of the grievance procedure by anticipating and preventing fear of retaliation and a belief that complaints would be futile. Employers can do this through additional education and training for employees and by providing an open-door policy.
• Hospitals' sexual harassment policies should extend to electronic communications, including e-mail, the Internet and Intranet. Hospitals should describe clearly to employees what types of activities are prohibited, the penalties for flouting the policy, and how to report violations.

[AHA Human Resources Advisory, July 6, 1998]