Healthcare professionals should take steps that will reduce the risk of sexual harassment claims being filed against them, their employees, and their practices. Having to mount a defense against sexual harassment claims or lawsuits after they’ve been filed is expensive, time-consuming, and stressful, even if the claims are unfounded.

Sexual harassment claims can also hurt your practice in other ways. They can lower employee morale and damage your reputation in the community, potentially affecting your ability to retain and attract patients. For all these reasons, it’s far better to prevent sexual harassment claims from arising in the first place rather than trying to deal with them after they’ve been filed.

Reducing the risk of sexual harassment claims requires:

• Providing effective training for all of your employees and making sure they know you take harassment seriously.
• Creating an accessible and effective process for employees to make complaints of harassment internally.
• Taking immediate action when there is a complaint.
• Creating and distributing written procedures that are up to date with the latest changes in sexual harassment laws.

See below for more detail on the steps you can take to reduce your risk of facing a harassment claim or lawsuit.

It’s also important that you be aware of the laws in your state and city, which may be different from the laws in other states and cities and can be significantly stricter than federal sexual harassment law. For example, in California, it’s not just good practice to provide sexual harassment training to your employees -- it’s also a requirement of California law.

What is Sexual Harassment in the Workplace?

Sexual harassment is considered a form of sex discrimination.

Who can bring a claim of sexual harassment? Who can the claim be brought against?

• Sexual harassment claims are usually brought by women against men, but both the victim and the harasser can be any gender, and the two can be the same gender, as long as the harassment is because of the victim’s gender.
• The person being accused may be the accuser’s supervisor, co-worker, or a non-employee.
• A person does not have to be fired or suffer any economic damages to file a sexual harassment claim.
• The person bringing the sexual harassment claim does not necessarily have to be the person who was harassed. Anyone who was affected by the conduct may bring a claim.

What behaviors may be unlawful harassment?

Harassing behaviors include unwelcome sexual advances, requests for sexual favors, remarks or physical harassment of a sexual nature, and offensive remarks that are not sexual but are about a person’s gender.

Are these behaviors always unlawful?

Under federal laws on sexual harassment (which are part of Title VII of the Civil Rights Act of 1964), remarks of a sexual nature and other behaviors are not always illegal. Isolated incidents that aren’t very serious, light teasing, and offhand comments may not rise to the level of unlawful harassment. Federal law recognizes two types of sexual harassment: quid pro quo and hostile work environment.

Quid pro quo is when a harasser offers to give the victim some benefit of employment, such as a promotion or a raise, in exchange for a sexual favor, or threatens an adverse employment action, such as firing or demoting the victim, if the victim rejects the harasser’s sexual advances.

Hostile work environment cases are more common than quid pro quo cases. The standard in these cases is that harassing behaviors are illegal when they are frequent or severe, creating an offensive or hostile work environment.

States may have different standards than the federal government. The bar may be set lower in some states, making certain types of behavior illegal under state law that would not be illegal under federal law. For this reason, it is a good idea to consult an employment attorney who is experienced in both federal law and the laws of your state to help you set up the correct workplace procedures, or to review existing procedures to make sure you are in compliance with all the applicable laws and regulations.

Steps You Can Take to Reduce Your Risk of a Sexual Harassment Claim

Here at Dental and Medical Counsel, we are available to represent you if a sexual harassment claim or lawsuit has been filed against you. However, we would much rather see our clients take the necessary steps to prevent sexual harassment from occurring in the first place. Contact us if you have any questions about how we can help you take these steps that will significantly reduce your risk of having to deal with a sexual harassment claim:

Have clear policies on sexual harassment and make sure your employees are aware of them and understand them.

You should create and distribute clear policies to your employees that define sexual harassment and:

• State clearly that sexual harassment or retaliation will not be tolerated.
• Describe your procedures for making complaints.
• State that you will investigate all complaints and will discipline or fire anyone found to be a harasser.

Make sure your employees know about your sexual harassment policies by:

• Including the policies in all written employee handbooks and policy manuals.
• Giving them to all new employees.
• Posting them on bulletin boards.
• Having employees acknowledge in writing that they received and understood the policies.
• Conducting training at least once a year.

Create and nurture a zero-tolerance culture.

In addition to providing a clear sexual harassment policy, you should also go further by striving to make the zero-tolerance policy an integral part of the culture of your practice.

Be aware of what is going on in your workplace.

Talk to your employees and supervisors about their work environment. Keep an eye out for offensive language or other offensive material.

Train your supervisors and other employees on your sexual harassment policies at least once a year.

• Provide training sessions for managers and supervisors.
• Educate them on sexual harassment.
• Explain how they should deal with complaints.
• Explain they should report any harassment they become aware of, even if no one filed a complaint

Train all your employees on harassment policies.

• Explain sexual harassment.
• Emphasize that employees have a right to a workplace that is free of harassment.
• Explain your internal complaint procedure and encourage employees to use it.
• Have all employees acknowledge in writing that they received the training.

Providing annual sexual harassment training to employees is an important step to take both to reduce the risks of sexual harassment claims and to provide a defense if you are facing a claim or lawsuit. In some states, you are also legally required to provide training. California is one of those states.

California’s sexual harassment law is part of the state’s Fair Employment and Housing Act (FEHA). In addition, California’s AB 1825, enacted in 2005, deals specifically with sexual harassment training requirements.

Changes in California’s Sexual Harassment Training Requirements Since 2015

In the last several years, California has amended and revised its laws on sexual harassment training several times.

• In 2015, AB 2053, an amendment to AB 1825, added a requirement that sexual harassment training include training on preventing abusive conduct.
• In 2016, FEHA regulations on training requirements were revised.
• In 2018, SB 396 added a requirement that sexual harassment training for supervisors include training on sexual orientation and gender identity and expression.
• Effective January 1, 2021, SB 1343 and SB 778 amended FEHA regulations to require that California businesses with five or more workers train all of their employees in sexual harassment, and you must:
• Provide classroom or “other effective” interactive training on sexual harassment once every two years for all employees who are in California.
• Provide the training for new employees within six months from the time they start their jobs.
• Training for supervisors must be at least two hours.
• Training for nonsupervisory employees must be at least one hour.
  

Be Aware of New California State Bill 331

If you are an employer or HR professional in California, please be aware of the new state bill 331 that went into effect on January 1, 2022. This new law prohibits confidentiality provisions in settlement agreements. To learn more, read CA Law Prohibits Confidentiality Provisions in Settlement Agreements.

Have an effective complaint or grievance procedure, and make sure employees know how to use it.

Instead of discouraging employees from making complaints internally about sexual harassment, you should encourage them to do so and provide clear complaint procedures. You will gain two benefits:

• If the employee is satisfied with the results of the internal procedures, then the situation will be resolved without an external claim or lawsuit.
• If the employee does end up filing an external claim or lawsuit, showing that you have effective internal complaint procedures will be an important part of your legal defense.

Make sure your supervisors know they should not retaliate in any way.

It is illegal to retaliate against employees who assert their legally protected right to file sexual harassment complaints. Retaliation can take many forms, including firing, not promoting, negative performance reviews, unwanted shift changes, and denial of overtime. Make sure that your supervisors and managers understand that not only can’t they take specific adverse employment actions in retaliation for an employee reporting harassment, but they also shouldn’t gossip about the complaints, tease the employee for making them, or otherwise make working conditions difficult for the complainant.

Keep complaints confidential to the extent that you can.

Maintaining total confidentiality may not always be possible when investigating sexual harassment complaints. However, everyone involved in conducting investigations should be trained in the importance of confidentiality and taught techniques that will help maintain confidentiality whenever possible.

Take all complaints seriously and conduct effective investigations.

All internal complaints of sexual harassment should be promptly and appropriately investigated. You may want to hire an experienced and impartial outside investigator to conduct the investigation. The investigator will usually need to interview the accuser, the accused, and any witnesses, which could include nearby employees who might have overhead relevant information. The investigation should also include a search for evidence in emails and other documents.

Take immediate and appropriate remedial action.

If the investigator concludes that sexual harassment has taken place, then you should take prompt action that will end the harassment and prevent it from happening again. That may mean firing the harasser but, depending on the circumstances, there may be other options.

Learn from what happened and use what you learned to improve.

After the complaint or lawsuit has been resolved, examine the circumstances that led to the complaint being filed in the first place. Were there problems with your policies, training, or the way you hired employees? By identifying the weak spots in your procedures, you can take steps that will reduce your risk of sexual harassment claims in the future.

Differences Between Federal and California Sexual Harassment Laws

In addition to the important differences in sexual harassment training requirements described above, federal and California sexual harassment laws diverge in other ways. California harassment laws, which are part of the state's Fair Employment and Housing Act (FEHA), apply more broadly than federal laws.

Both federal and California laws prohibit harassment based on sex, gender, pregnancy, childbirth, or harassment of a sexual nature. California also prohibits harassment based on gender identity, gender expression, and sexual orientation.

In California, employers are allowed to have no-dating policies that prohibit relationships between two employees when one is the supervisor of the other.

Some of the California and federal penalties for sexual harassment violations are the same, but in some cases, California imposes greater penalties.

California also requires that employers create written harassment policies that meet a number of specific criteria. If you have a medical, dental, optometry, or veterinary practice, the employment lawyers at Dental & Medical Counsel can help ensure that your policies are up to date and in full compliance with current laws. We can review your existing policies and help you fill in any gaps to make sure that you have taken all the steps necessary to reduce your chances of facing an expensive and lengthy sexual harassment claim that could put your practice at risk.

Contact Dental & Medical Counsel at 925-999-8200 or by submitting a contact us form to schedule a complimentary consultation with employment attorney Ali Oromchian.