United States: Even The Doctor Is Not Immune

A federal jury recently awarded $350,000 in punitive and compensatory damages to three former employees of Endoscopic Microsurgery Associates, a  Baltimore-area medical practice, who were subjected to unwanted sexual advances by Dr. Mark Noar, the Owner/CEO of the practice, and Martin Virga, the Practice Administrator.

Allegations

According to the Complaint filed by the Equal Employment Opportunity Commission (EEOC), Noar and Virga made "frequent unwanted sexual comments" to the female employees, as well as "frequent sexually derogatory comments about women," and he "physically touch[ed] and grabb[ed] female employees in a sexual manner against their will." Complaint 3.

The Complaint further alleges that, "[d]espite repeated complaints to management," the harassment continued and intensified, evolving "into a retaliatory hostile work environment."  The Defendant even "[threw] papers at female employees..." and eventually terminated one of them, presumably "in retaliation for engaging in protected activity." Complaint 4.

Verdict and Damages

The jury returned a verdict in favor of each of the three female employees. The jury found that Defendant had subjected Linda Luz, Jacqueline Huskins and Kimberly Hutchinson to a sexually hostile work environment.  The jury further found that Virga's conduct, at least in part, contributed to the sexually hostile work environment, and that Virga was at least partially responsible for the retaliatory harassment of Luz. Finally, the jury found that Defendant had terminated Luz's employment "because she complained about and/or opposed sexual harassment." The jury awarded $110,000 in punitive damages to each of the female employees, and compensatory damages ranging from $4,000 to $10,000 each.

In its press release following the verdict, EEOC Philadelphia regional attorney Debra Lawrence stated that the verdict "reminds high-level officials who  function as the employer that their high level does not give them license to abuse  women – they must treat employees as professionals." said. Maria Salacuse, the EEOC's lead counsel in the case, added that the case "emphasizes the necessity of employers having in place meaningful and enforceable policies guarding against such mistreatment."

Physician Immunity

EEOC does not have a history of targeting physicians in Title VII sexual-harassment litigation, although among the 7,500 or more sexual-harassment charges filed each year, many of the complainants are employees of medical facilities. The question then is why EEOC chooses the cases it does litigate each year against physicians, and, more importantly, how can a medical facility avoid becoming a target? The likely answer to the first question becomes apparent by comparing the above case to one of the few published opinions in the past several years where EEOC has litigated a sexual-harassment claim against a medical clinic: EEOC v. Fairbrook Medical Clinic, P.A., 609 F.3d 320 (4th Cir. 2010). In Fairbrook,EEOC filed suit on behalf of a female physician "Charging Party" against her former employer, alleging a sexually hostile work environment. The alleged harasser in the case was Dr. John Kessel, the sole owner of the clinic and Charging Party's direct supervisor. The Court of Appeals reversed the district court's grant of summary judgment in the case, concluding that "[w]hat happened here . . . was . . . a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment." Id. at 322. Among other harassing behavior, EEOC alleged that Dr. Kessel showed the Charging Party and other employees an x-ray of his hip that included "a shadowy image of his penis," which Kessel referred to as "Mr. Happy" on multiple occasions. Kessel discussed intimate details of his sex life with Charging Party, despite the fact that Charging Party told him that the comments made her uncomfortable. Perhaps the most egregious allegations took place after Charging Party returned from maternity leave, when Kessel frequently commented on her breast size, often asking if he could see her breasts and help her pump her breast milk. Id. at 325. Eventually, Charging Party resigned from the clinic. Id. at 325-26.

Significantly, in the Fairbrook case, the clinic had a policy prohibiting sexual harassment, but the reporting system was inadequate. Employees were directed to report complaints of sexual harassment to their "immediate supervisors"; if that method was ineffective, employees were to report complaints to "the partners" of the clinic "and ultimately to 'a human resource representative or a representative of the EEOC.'" Id. at 326.  Not only was Dr. Kessel Charging Party's immediate supervisor, but he was also the only "partner" at the clinic because he was the sole owner. Charging Party still brought her complaints to Kessel, which he apparently ignored, referring to her as "one of the guys." Id. at 323, 326. When Kessel failed to change his behavior after Charging Party's repeated complaints, Charging Party reported his actions to the office manager and possibly the personnel manager. Charging Party exhausted all of her internal resources, yet "[t]he clinic did not conduct an investigation or take any corrective action." Id. at 326.

Why These Cases?

Besides the fact that the allegations in both the Endoscopic and Fairbrook cases are egregious, the cases share another commonality: the medical facility learned about the harassing conduct and did nothing. In any workplace, tolerance of sexual harassment sends a clear message that the workplace considers itself above the law. In the case of medical clinics, however, the message is also one of fear. Physicians often own or hold shares in the facilities where they work, and their titles alone carry an air of respect and even immunity from wrongdoing. Accordingly, when the physician is the harasser, he or she may seem untouchable, despite whatever harassment policies may be "on the books."

What HR Professionals in the Medical Industry Can Learn From These Cases

First and foremost, assuming the allegations in these cases are true, the harassment should never have gone as far as it did. If these clinics had had effective policies prohibiting sexual harassment in the workplace, the victims of the harassment would have known exactly what to do after the first inappropriate comment and human resources could have taken measures to ensure that the first comment was also the last. Policies prohibiting sexual harassment – or any form of harassment – are meaningless if they do not provide a clear chain of command for complainants. In drafting a policy, the HR professional should put his/herself in the shoes of each employee in the company and determine what that employee would need to do if he/she needed to report a complaint. It is extremely important that each employee has an alternate route to take, in the event that the employee's supervisor is the alleged harasser. More importantly, each individual in the chain of command for reporting complaints must have the authority to take immediate action to resolve the issue. If, for example, the office manager cannot ask a physician to leave for the day while the clinic conducts an investigation into allegations against the physician, the office manager does not belong in the chain of command.

Beyond setting forth a clear route for reporting harassment complaints, HR professionals also need to have a plan in place in the event that one of the physicians is accused of harassment. Whereas in some work environments, the company could simply investigate and terminate the alleged harasser, termination is not always an option when a physician is a partner in the medical office, or brings in a large percentage of patients. Accordingly, if an investigation reveals that the physician sexually harassed an employee, the HR professional may need to consider other effective options for remedying the situation. Training sessions are always a good option, but in some situations, the solution may need to involve a more personal solution, such as requiring the physician to attend individual sensitivity counseling. Finally, always remember the complainant. Ask the complainant what he or she thinks about the recommended plan of action. See if there is anything else that would make the complainant more comfortable in his or her workplace. Keep an open line of communication between the complainant and management so that the complainant knows that his or her comfort at work is a priority, and that even physicians are not above the law.

An article by Denver Partner Sue Schaecher was recently featured in the January issue of Colorado Association of Mechanical and Plumbing Contractors' newsletter.

This article originally appeared on Hrprofessionalsmagazine.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions