Position Statement: On Sexual Harassment

Intent

The intent of this position statement is to condemn sexual harassment in the workplace and to inform nurses of their rights and ethical obligations in relation to sexual harassment complaints.

Position

It is the position of the New York State Nurses Association that:

• Registered professional nurses and students of nursing have a right to a workplace free of sexual harassment.

• Health care employersmust develop sexual harassment policies that prohibit all forms of sexual harassment and disallow any form of retribution to those who report sexual harassment.

• While it is the responsibility of every employer to immediately take measures to address and prevent sexual harassment in the workplace, it is the obligation of every nurse to report instances of harassment in compliance with the Code of Ethics for Nurses’ Provision 6 which states, “The nurse, through individual and collective effort, establishes, maintains, and improves the ethical environment of the work setting and conditions of employment that are conducive to safe, quality health care” (ANA, 2015)

Background

Sexual harassment is a major problem in the healthcare workplace. It is a pervasive, disparaging, social, legal and ethical problem. It is a form of sex discrimination that affects all workers regardless of gender, gender identity or sexual orientation.

Most reported cases of sexual harassment involve men as the perpetrators and women as the victims. A study conducted in 2016 by the University of Michigan Medical School found that approximately 30% of female responders reported having experienced overt sexual harassment (Spector et. al., 2016). However the percentage of sexual harassment complaints filed by men is on the rise. U.S. Equal Employment Opportunity Commission (EEOC) sexual harassment complaints filed by men was only 8% in 1990. However, that rate increased to 16.5% by 2017 (EEOC, 2018). Same-sex harassment complaints are also increasing (Figueroa, 2010). This may be due to an increase in the number of incidents or improved reporting.

Jocelyn Frye, a senior fellow at the Center for American Progress, analyzed sexual harassment charges filed with the EEOC from 2005 to 2015 and found that the Health Care and Social Assistance category had one of the highest rates of complaints—11.48% (Frye, 2017). This number only includes cases where formal complaints were filed. When polled, nurses often report higher levels of sexual harassment. A review of international studies on violence and sexual harassment of nurses found that approximately 25% of nurses have experienced sexual harassment (Spector, Zhiqing, Xin, 2013). The number of sexual harassment cases that do not result in formal complaints is likely to be far higher. A 2016 EEOC report found that three out of four individuals who experience sexual harassment never file a complaint.  The reasons for lack of reporting include, “fear, disbelief of their claim, inaction on their claim, blame, or social or professional retaliation” (EEOC, 2016).

In the United States, sexual harassment is classified as a form of discrimination under Title VII of the Civil Rights Act of 1964. The EEOC interprets and enforces Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on gender. The EEOC has expanded discrimination cases it will enforce to include discrimination on the basis of gender identity or sexual orientation as well (EEOC 2018). Sexual harassment is characterized by conduct of a sexual nature that is unwanted and unwelcome by the receiver. Conduct is considered unwelcome when it is neither invited nor solicited and the behavior is deemed offensive and undesirable. Sexual harassment in the workplace is an unlawful exercise of power. The harasser uses his or her authority, or power, to belittle, humiliate, refuse to promote, or demote someone (Hamlin & Hoffman, 2002). Harassing behaviors include, but are not limited to, the following:

• Verbal sexual advance determined by the recipient as unwelcome
• Sexually-oriented comments about someone’s body, appearance and/or lifestyle
• Offensive behavior such as leering, ridicule or innuendo
• Display of offensive visual materials
• Deliberate unwanted physical contact (Gardner & Johnson, 2001)

The EEOC, the government agency responsible for enforcing federal anti-discrimination laws, issued guidelines in 1980 that define sexual harassment in two ways:

Quid Pro Quo – “something in exchange for something else” (Garner, 1999). In the context of sexual harassment, quid pro quo harassment occurs “when submission to or rejection of such conduct by a person is used as the basis for employment decisions affecting that person” (Fiedler, Hamby, 2000).  This may include promotions, demotions, termination, change in schedule, etc. Quid pro quo harassment is perpetrated by someone who is in a position of power or authority over another (e.g., manager or supervisor over a subordinate). Unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature constitute harassment when a submission to or rejection of such conduct is used as the basis for employment decisions.

Hostile Work Environment – “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment” (Gardner & Johnson, 2001).

The enactment of the Civil Rights Act of 1991 further impacts sexual harassment cases. This law permits punitive and compensatory damages for sexual harassment victims. EEOC guidelines authorize courts to hold employers liable financially for their employees’ sexual misconduct (Fiedler & Hamby, 2000).

New York State Human Rights Law also prohibits sexual harassment. Like federal law, the New York State law defines sexual harassment in terms of “quid pro quo” and “hostile work environment.”

Sexual harassment may also fall under the New York State penal code depending on whether it meets the state’s legal criteria for sexual assault.

The 2018-2019 New York State budget increases anti-sexual harassment provisions by barring nondisclosure agreements in settlements unless the victim has requested confidentiality. It also prohibits mandatory arbitration of sexual harassment complaints and extends sexual harassment protections to contract employees and freelance workers (Herzfeld, 2018). In addition the budget requires all public and private employers in New York State to adopt model sexual harassment policies and training programs. New York City government also passed a law in 2018 requiring sexual harassment training for all businesses that employ individuals within NYC. Both NYC and NYS have expanded the statute of limitations for filing sexual harassment claims.

Although there are numerous legal standards to protect workers from sexual harassment and prohibit retaliation against victims who file sexual harassment complaints, many victims do not speak up regarding their harassment. “Despite so many legal protections, many instances continue to go undetected because of the hierarchical nature of many health care institutions, and the victims’ fear that their allegations will not be given credence, or may in fact result in their losing their jobs or hurting their careers” (Serbaroli, 2018). Many cases of sexual harassment are either covered up or quietly settled with some compensation paid to the victim, a confidentiality agreement signed, and re-assignment or resignation of the victim. This hierarchy also tends to protect doctors from complaints of sexual harassment. “It is a sad fact that, in the past, some hospitals would take extraordinary steps to protect a sexually abusive physician because he brought in a high volume of patient admissions, or was in a senior management position, or was responsible for obtaining substantial research grants, philanthropic gifts, or other significant income. Times are changing, however, and more people are not only more aware of their rights but also prepared to assert them” (Serbaroli, 2018).

While most sexual harassment cases that result in complaints to city, state and federal agencies involve perpetrators who are other employees or managers at the same workplace, nurses may also experience sexual harassment from patients. A poll conducted by Medscape Medical Review in 2017 found that 71% of nurses reported being harassed by patients. The poll defined harassment as “stalking, persistent attempts at communication, and inappropriate social media contact.” The poll also asked about physical harassment from patients (Frelick, 2017). 

Victims of sexual harassment often experience significant short and long-term psychological, psychosocial and occupational consequences. Emotional distress may be manifested by anxiety, depression, post-traumatic stress disorder (PTSD) and substance abuse.  Many victims experience increased absenteeism, burnout, job change, interpersonal conflict and/or impaired intimacy and sexual functioning.

An unsafe work environment leads to compromises in patient care. For instance, when the harasser is a colleague, valuable patient care information may not be communicated. Also, a distressed individual may have difficulty concentrating, thereby missing important patient information (Valente, Bullough, 2004). Health care organizations also incur significant costs from sexual harassment including decreased productivity, increased absenteeism, lawsuits and claims. The U.S. Department of Labor reports that U.S. organization lose roughly $1 billion annually related to absenteeism, lowered morale and new employee training because of sexual harassment (Moore, Cangelosi, Gatlin-Watts, 1998). That number continues to rise.

Conclusions

Sexual harassment continues to be a pervasive, insidious problem for workers in the health care industry. Enforcing an effective sexual harassment prevention program may be the responsibility of the employer; however, key to successfully decreasing harassment in the workplace is soliciting input of all employees in developing and improving these programs.  Registered professional nurses can, and should, play a key role in making sure that they and their colleagues are able to practice their profession in a workplace free from degrading and abusive behavior. As the co-chairs of the 2016 EEOC Select Task Force on the Study of Harassment in the Workplace state, “We cannot be complacent bystanders and expect our workplace cultures to change themselves.”

Recommendations

Creating and maintaining a workplace free from sexual harassment takes more than platitudes and blanket statements. Structures that enforce consequences for harassing behavior and support targets of sexual harassment must be implemented and maintained without regard to position within the workplace hierarchy. In order to implement effective sexual harassment prevention, health care organizations must:

• Develop a sexual harassment written policy with the input of all employees, that includes, but is not limited to:
• Purpose
• Who is covered, legal definition and guidelines
• Responsibilities of management and employees
• Non-retaliation statement
• Complaint reporting procedure;
• Thoroughly investigate all claims of sexual harassment;
• Implement sexual harassment reporting systems that ensure that no retaliatory action is taken against the reporting employee;
• Work with employee representatives to assess the workplace for the risk factors associated with sexual harassment and develop policies and procedures to minimize those risks;
• Regularly communicate to their employees that sexual harassment is never acceptable in any form, allegations will be thoroughly investigated, and sanctions taken against perpetrators of sexual harassment;
• Develop training programs to educate employees on workplace policies and procedures related to sexual harassment including, but not limited to:
• Actions that constitute sexual harassment
• Consequences of sexually harassing behavior
• Reporting mechanisms
• Support systems for employees who experience sexual harassment
• Procedures for dealing with patients and/or visitors who are perpetrators of sexual harassment against health care facility employees;
• Develop response actions to sexual harassment incidents that are consistent regardless of the job title or job responsibilities of the employee.

Approved by Board of Directors, April 8, 2005. Reviewed and revised, May 10, 2018.

For further information, please refer to NYSNA’s other position statements on workplace violence, domestic violence, gun violence, and active shooter.

References

American Nurses Association Code of Ethics for Nurses with Interpretive Statements. (2015).

Chai, F., Lipnic, V. (2016). EEOC select task force on the study of harassment in the workplace. Equal Employment Opportunity Commission. Retrieved on 5/9/2018 from https://www.eeoc.gov/eeoc/task_force/harassment/.

EEO: Sexual Harassment: What are the different types of sexual harassment? (Jan. 12, 2018).

Society for Human Resource Management. Retrieved on 5/4/2018 from https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/typesofsexualharassment.aspx.

Equal Employment Opportunity Commission:  What you should know about EEOC and the enforcement protections for LGBT workers. Retrieved on 5/9/2018 from https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.

Feldblum, C.R., Lipnic, V.A. (2016). Report of the co-chairs of the select task force on the study of harassment in the workplace. U.S. Equal Employment Opportunity Commission.

Fiedler A., Hamby E. (2000). Sexual harassment in the workplace: Nurses' perceptions. Journal of Nursing Administration, 30(10), 497-503.

Figueroa, A. (2010). Workplace harassment:  Same-sex sexual harassment cases are on the rise. Christian Science Monitor. Retrieved on 5/8/2018 from https://www.csmonitor.com/Business/new-economy/2010/0721/Workplace-harassment-Same-sex-sexual-harassment-cases-are-on-the-rise.

Frelick, M. (2018). Harassment from patient’s prevalent, poll shows. (2018), Medscape Medical Review. Retrieved on 4/17/2018 from https://www.medscape.com/viewarticle/892006#vp_1.

Frye, J. (2017). Not Just the Rich and Famous: The pervasiveness of sexual harassment across industries affects all workers. Center for American Progress. Retrieved on 4/17/18 from https://www.americanprogress.org/issues/women/news/2017/11/20/443139/not-just-rich-famous/.

Gardner, S., Johnson, P.R. (2001). Sexual harassment in healthcare:  Strategies for employers. Hospital Topics, 79(4), 5-11.

Garner, B.A. (Ed.). (1999). A handbook of basic law terms. St. Paul, MN: WEST Group. 76 (5), 855-860.

Herzfeld, J. New York budget legislation takes on sexual harassment, union fees. Bloomberg Law Daily Labor Report (April 2, 2018). Retrieved on 5/17/2018 from https://bnanews.bna.com/daily-labor-report/new-york-budget-legislation-takes-on-sexual-harassment-union-fees.

Jagsi, R., Griffith, K.A., Jones, R., et al. (2016), Sexual harassment and discrimination experiences of academic medical faculty. Journal of the American Medical Association, 315(19), 2014-2136.

Moore, H. L., Cangelosi, J. D., Gatlin-Watts, R. W. (1998). Seven spoonsful of preventive medicine for sexual harassment in health care. The Health Care Supervisor, 17(2), 1e-9.

Serbaroli, Francis J. (2018). Sexual harassment in the health care workplace. New York Law Journal. Retrieved on 5/4/2018 from: https://www.law.com/newyorklawjournal/sites/newyorklawjournal/2018/01/22/sexual-harassment-in-the-health-care-workplace/.

Spector, P. E., Zhiqing, E. Z., Xin, X. C. (2013). Nurse exposure to physical and nonphysical violence, bullying, and sexual harassment: A quantitative review. International Journal of Nursing Studies, 51(2014), 72-84.

U.S. Equal Employment Opportunity Commission. (2018). Charges alleging sex-based harassment (Charges filed with EEOC). FY 2010 - FY 2017. Retrieved on 5/4/2018 from https://www1.eeoc.gov//eeoc/statistics/enforcement/sexual_harassment_new.cfm?renderforprint=1.

Valente, S. M., Bullough, V. (2004). Sexual harassment of nurses in the workplace. Journal of Nursing Care Quality, 19 (3), 234-241.