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Sexual Harassment in the HIM Department

Vol. 12 •Issue 11 • Page 14
Legal Briefs

Sexual Harassment in the HIM Department

A hospital-based medical records department clerk, ("SM"), began working for a "Hospital" in December 1996. At the time of hire, she completed an application that gave the Hospital permission to perform a pre-employment physical that allowed a urinalysis drug profile "as may be required" by the Hospital.

By November 1998, SM was working in the Hospital's medical records department. She was 19 years old. She was alone in the department when she had an encounter with Dr. A, who had Hospital privileges. He also was "of retirement age," according to the court. At this encounter, Dr. A allegedly placed his hands on SM's shoulders and "began to massage her neck." SM "cringed" and told the doctor not to "ever touch [her] again." SM reported the incident to her supervisor and the director of medical records ("Director"), but she indicated that "there was nothing that needed to be done" and that she didn't want the Director to do anything about the incident. Consequently, the Director did not investigate the complaint about the doctor.

In January 1999, Dr. A. unlocked the doctor's entrance to the medical records department approximately 12 times. SM caught Dr. A "behind the files, watching her," noted the court. SM reported this to her supervisor and the Director. The Director sent a memo to Dr. A on Jan. 26, 1999, telling him not to unlock the doors to the medical records department. He complied with this. However, he entered the medical records department "approximately 20 to 30 times over a nine month period between November 1998 and July 1999."

During these visits, SM testified that Dr. A "leered at her, looking her 'up and down' and at 'every inch of her body.'" Dr. A allegedly told SM that he "just wanted to look at [her] or that he liked to look at beautiful women." Again, in March 1999, SM reported Dr. A's behavior to her Director. No action was taken.

Twice Dr. A. approached SM from behind and "pinned her into her chair by placing his arms around her and placing his hands on her desk." Another time, SM was in the hospital cafeteria when Dr. A. approached her from behind, placed his hands on her back and slid them down to her waist. She ran away.

By July 30, 1999, SM filed a complaint against Dr. A's alleged sexual harassment. She claimed that Dr. A. rubbed her shoulders in 1998; unlocked the doors and stared at her beginning in January 1999; stared at her in March 1999; and approached and touched her in the cafeteria on July 28, 1999. The Director forwarded the complaint to the VP of Human Resources, who in turn, turned it over to the hospital's president. He in turn, spoke with the Chief of Medicine who instituted an investigation. Dr. A. denied all charges of sexual misconduct.

On Aug. 7, 1999, while working in the medical records department, SM suffered a panic attack, becoming nervous, sweating and shaking. The Director authorized SM to go to the emergency department. She was on leave until Aug. 15, 1999. Soon after, on August 19, a co-worker of SM reported that SM "had slurred speech on August 16 [and] had shown her a bag of Valium and Darvocet that her grandfather had given her," according to the court.

Based on the allegation of SM's drug use, the Hospital decided she should undergo a urine drug profile ("UDP") the next time she came to work. On August 24, SM became frightened that Dr. A was going to visit the medical records department. She started to cry. Nonetheless, the Director and VP for Human Resources told SM that a co-worker complained about the prescription drugs SM had. The VP for Human Resources twice requested SM to have a UDP. SM refused and she was subsequently terminated. Meanwhile, the Hospital renewed Dr. A's contract until his retirement a few years later.

SM sued the Hospital alleging a hostile work environment based on sexual harassment and retaliation under Title VII of the Civil Rights Act, as amended. The Hospital sought summary judgment. The court held that the record supports "a reasonable inference that Dr. A's conduct toward [SM] was sufficiently severe or pervasive that a reasonable person would find it hostile or abusive." SM had indeed raised an issue whether Dr. A's conduct constituted sexual harassment.

Additionally, by insisting that SM submit to the UDP when she was in a highly emotional state, "a reasonable trier of fact could find that [the Director], who had a motive to retaliate against [SM], made no effort to either postpone the meeting É and in this way impacted the termination decision." The court stated a reasonable person could infer that "it was much easier to get rid of the young file clerk who complained about sexual harassment in the workplace than to replace the older, medical doctor who was accused of harassing her." Thus, the court denied the Hospital's summary judgment motion.

Alan C. Horowitz is assistant regional counsel, Office of General Counsel, Department of Health and Human Services (HHS). Any views expressed herein are those of the author and do not necessarily reflect the official policy or position of HHS, the Office of General Counsel or the U.S. government.


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