By Kevin Green and Jesse Coleman

Seyfarth Synopsis:  A recent editorial authored by two female doctors in the Canadian Medical Association Journal proclaims that, “in the era of #MeToo, it is time for physicians to acknowledge that the medical profession is not immune to bullying, harassment and discrimination, and act to abolish these behaviours.”  #MeToo and the Medical Profession (Aug. 20, 2018).  While the #MeToo movement had unprecedented success increasing accountability for sexual misconduct among entertainment, political, and academic institutions, the healthcare industry did not receive the same attention. Recent findings demonstrate, however, that the #MeToo movement will soon leave its mark on health care as well.

Perception of Historic Tolerance of the Medical Profession

A 2018 report issued by the National Academies of Sciences, Engineering, and Medicine (NASEM) documents the problem of sexual harassment in the medical field in significant detail.  Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.  Among other things, the NASEM report demonstrates that the academic environments in medicine exhibit characteristics that create high risk levels for the occurrence of sexual harassment.  The report finds that, by far, the greatest predictor of sexual harassment is the organizational climate across an institution (also referred to as the perceptions of organizational tolerance).  In short, women are more likely to be directly harassed and to witness the harassment of others in environments that are perceived as more tolerant or permissive of sexual harassment.

According to a recent AP investigation, the medical industry has traditionally been more forgiving of sexual harassment allegations within its own ranks. The AP found that “when doctors are disciplined, the punishment often consists of a short suspension paired with mandatory therapy that treats sexually abusive behavior as a symptom of an illness or an addiction” and that decades of complaints regarding the leniency of the physician disciplinary system for sexual misconduct toward patients or co-workers has produced little change in the practices of state medical boards.  AP Investigation: Doctors Keep Licenses Despite Sex Abuse (Apr. 14, 2018). The AP report details that the causes underlying these issues are complex and varied, including:

  • Failure of the medical community to take a stand against the issue;
  • Institutional bias on part of medical review boards to rehabilitate instead of revoke licensure;
  • Perceived tolerance for sexual harassment through precedent of lenient penalties for sexually abusive doctors which inhibits current disciplinary actions;
  • Interference from administrative law judges who reduce stricter punishment sought by medical boards against sexually abusive doctors (though medicine boards may seek to override administrative decisions they disagree with);
  • Hospital disinclination to report abusive doctors;
  • Rehabilitative physician health programs that are either ineffective in addressing sexual misbehavior or ignore it altogether; and
  • Patient and employee reluctance to challenge a medical professional or employers.

Regardless of the causes, the days of organizational tolerance of sexual harassment in the medical profession appear numbered as more and more individuals and institutions search for solutions to these historical challenges.

The #MeToo Movement is Here to Stay

Though perhaps not subject to the same media coverage initially afforded, the #MeToo movement remains an active force in the workplace. Title VII filings accounted for 56 percent of all filings with the Equal Employment Opportunity Commission (EEOC) in FY 2018. Perhaps the most striking trend of all is the substantial increase in sex-based discrimination filings, primarily the number of sexual harassment filings.  See EEOC Puts The Pedal To The Metal: FY 2018 Results.

#MeToo added fuel to this area of the EEOC’s agenda, with 74 percent of the EEOC’s Title VII filings this year targeting sex-based discrimination.  Compare this to FY 2017, where sex based discrimination accounted for 65 percent of Title VII filings. Of the FY 2018 sex discrimination filings, 41 filings included claims of sexual harassment. 11 of those filings were brought in the last three days of the fiscal year alone. The total number of sexual harassment filings was notably more than FY 2017, where sexual harassment claims accounted for 33 filings.

How Medical Employers Can Challenge Perceptions of Organizational Tolerance

The #MeToo movement presents myriad challenges that defy one-size-fits-all solutions. However, there are practices that can assist employers in their quest to create harassment free workplaces. As the research suggests, creating an anti-harassment culture begins with company leadership and then can permeate the entire organization. Beyond simple compliance, legal measures should be implemented with the goal of improving accountability and reducing the occurrence of sexual harassment. Some measures include:

  • Update company policies to clarify protections and conduct, emphasize non-retaliation provisions, and ensure multiple reporting channels and robust response protocols;
  • Conduct proper, substantive investigations that are not outcome determinative; and
  • Enhance and refresh sexual harassment training from the top down and reinforce through communication and modeling.

Identifying and implementing active measures to challenge the perception of tolerance for any harassing or abusive behavior within an organization is an essential step toward meeting the #MeToo movement’s call for a respectful work environment for all.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Kyla J. Miller and Erin Dougherty Foley

Seyfarth Synopsis: According to the 4th Circuit, a female employee who was subjected to false rumors that her promotion was a result of sleeping with the boss can levy her claim for sex-based discrimination against her employer. The Court held that the Company served as a catalyst for the gossip stemming from one jealous co-worker, and held that these types of rumors are inherently based on sex stereotypes regarding women’s advancement and role in the workplace.

A three judge panel for the 4th Circuit found that subjecting a female employee to false rumors that she had an affair with her boss to obtain a promotion could violate Title VII. Parker v. Reema Consulting, No 18-1206 (4th Cir. February 8, 2019). Plaintiff–a warehouse manager–was good at her job. So good, in fact, that she climbed her way to the top at an unmatched speed. Starting as an entry level clerk, over the course of two years she managed to receive six separate promotions that led her to a management role.

But as they say–success attracts envy. Two weeks after receiving her latest promotion, a male colleague, who had started at the same time as Plaintiff but had trailed behind her in his own advancement, started a rumor that Plaintiff was having an affair with the boss who promoted her. The rumor was not true, yet it spread like wildfire. Soon, the highest ranked manager at the company started engaging in the gossip. After the rumor spread, Plaintiff alleged that her male coworkers treated her with hostility and disrespect, and that the manager himself accused Plaintiff of “bringing the situation to the workplace” after she requested a meeting to discuss her concerns. The manager also stated he could not recommend her for promotion and that he should have fired her when she started “huffing and puffing about the BS rumor,” according to the Complaint.

Plaintiff brought a claim to Human Resources about the situation. According to the Company, they held a meeting with all management, including Plaintiff, to defuse the situation, then ordered all employees participate in sexual harassment training. Despite that, the manager later fired Plaintiff, stating she created a hostile work environment for the employee who started the rumor, and blaming her for insubordination.

Plaintiff sued the company for sex discrimination and retaliation under Title VII, including a claim for hostile work environment. The District Court tossed the hostile work environment claim–finding that mere bullying and harassment based on the false rumor was not based on her sex. In his opinion, the Judge stated, “the problem for Ms. Parker is that her complaint as to the establishment and circulation of this rumor is not based upon her gender but rather based upon her alleged conduct, which was defamed by, you know, statements of this nature.” He went on to explain, “clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her. But that is not a harassment based upon gender. It is based upon false allegations of conduct by her.”

Plaintiff appealed–now grabbing the attention of the EEOC and 50 women’s and equal rights groups who filed amicus briefs on her behalf. On appeal, the crux of Plaintiff’s argument was that the rumors were grounded in traditional sex stereotypes regarding women’s advancement and role in the workplace. The rumor stemmed from a male subordinate who was jealous that Plaintiff was advancing quicker than her male counterparts–an idea that by its nature implicated sex. Further, Plaintiff argued that the reaction her superiors had to the rumors–especially the disparate treatment and hostility that resulted from it–further demonstrated how intertwined her gender was to the harassment.

The 4th Circuit agreed. Siding with Plaintiff, the Court found that the rumor implied that Plaintiff “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion.” The 4th Circuit found it plausible that this rumor invoked a perception that generally women, not men, use sex to achieve success. And it is this double standard that subject women, not men, to perceptions that they will sell their bodies to get ahead. The rumor’s sexual undertone was enough to find Plaintiff plausibly alleged she suffered harassment because she is a woman.

Takeaways

In the age of #MeToo, it is critical employers stay on top of rulings that implicate hostile work environment claims. As this case demonstrates, courts are increasingly leaning towards a finding that stereotypes that could be associated generally with one gender over the other are intertwined with “sex” for purposes of Title VII. Employers should be aware that rumors about women “sleeping their way to the top” may very well implicate sex stereotypes. Quashing these types of rumors and ensuring management handle the situation appropriately is critical to avoiding vulnerability to Title VII claims about workplace gossip.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.