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Having a policy on sexual harassment is not enough

By Chris Harrop
December 14, 2017

Like most of American society, the healthcare and biotech industries recently witnessed high-profile revelations of sexual harassment and abuse in the workplace.

The #MeToo movement — an outpouring of people sharing their stories of experiencing harassment — included a series of sexual harassment allegations that prompted the resignation last week of the founder of a biotech hedge fund. This week, reports that a Massachusetts health center mishandled complaints of sexual harassment prompted the resignation of two top leaders.

The surge in stories of harassment gained traction after numerous women came forward to accuse movie producer Harvey Weinstein of abuse, which led to Time magazine recently naming those “silence breakers” as Person of the Year 2017.

The simple act of victims coming forward with their stories is significant given the common reluctance for victims to report incidents or confront the harasser. A 2016 EEOC study reported that three out of four individuals who experienced harassment never report it, mainly out of fear of not being believed/taken seriously or fear of some type of retaliation.

A Dec. 12 MGMA Stat poll asked practice leaders if their organization has a policy specifically related to sexual harassment. Of 1,237 applicable responses, 84% said their organization has a policy, while 12% said they do not and another 4% were unsure.

Respondents whose organizations have a policy routinely noted they also offer some form of organizationwide training, normally on an annual basis either via training modules online, video training or during an in-person event such as OSHA training or new-employee orientation.

Simply having a policy on harassment is not enough for healthcare organizations, says Judith Holmes, JD, cofounder, The Compliance Clinic LLC, Golden, Colo., who cautions practice leaders to take a serious look at handling harassment as the number of EEOC charges and complaints to employers likely increases as more allegations come to the forefront.

“That makes it much more important to get those policies in place,” Holmes says, which is only the first step for practices. “You’ve got to train people” on how to handle complaints and understand potential liability from not following a policy.

Holmes noted that a Supreme Court decision determined that if an employer fails to train employees on sexual harassment, the employer loses an affirmative defense: “It’s going to be harder for that practice to defend a lawsuit if they can’t show that they had a policy, that they applied it, that they trained people on it and they followed it,” Holmes says.

Holmes calls the training an “essential component of protecting your practice” because of that potential employer liability, and that training should be mandatory for everyone. Some practice leaders, in Holmes’ experience working with organizations, tend to exempt some physicians from training, citing busy work schedules and insisting the policy will be read later. But that is not good enough, Holmes cautions.

Holmes also notes that training often is done best by bringing in an external expert who understands the law and can answer questions for those who may not know the specifics of what legally constitutes harassment. She also recommends a separate training for upper management, supervisors and physicians that focuses on how to handle an investigation, when it is proper to bring in legal counsel into a situation and how to address confidentiality in the process of doing a prompt, thorough investigation when someone reports harassment and mitigate potential retaliation against those who report harassment.

But ultimately, improper handling of reports of harassment can contribute to a toxic work environment that can affect the bottom line in multiple ways, Holmes says.

“Ongoing bad behavior, it can just devastate a practice in the long run with high turnover, low morale — and if you think patients don’t sense the tension, you’re wrong,” Holmes says. “They see what’s happening underneath often, and you may not know you’ve lost patients to this kind of underlying stress and tension that your staff feels because there are all these problems going on that no one’s addressing.”

Handling, preventing disruptive behavior

Understanding the warning signs of someone in the practice who may be disruptive or abusive is one of the first steps to dealing with a potential problem. Will Latham, MBA, CPA, MGMA member, president, Latham Consulting Group, Chattanooga, Tenn., says that it is important to remember that disruptive behavior isn’t just action that violates policies or runs against the best interests of the practice. Behavior that can jeopardize the morale of the staff also should be considered disruptive, including:

  • Degrading comments
  • Inappropriate joking
  • Profanity
  • Yelling
  • Refusal to cooperate with others or follow established protocols
  • Spreading malicious rumors

During a session on the topic at the MGMA 2017 Annual Conference, Latham stressed that it is vital for practice leaders not to simply explain such behaviors as a symptom of stress, heavy workloads or learned behavior from bullying experienced in medical school. “I find, time and again, the real reason that we have disruptive behavior is because we tolerate it,” Latham says.

Many individuals naturally avoid conflict, Latham says, which can be a contributor to allowing disruptive or abusive behavior to linger and worsen an organization’s culture if left unchecked. In addition to taking an active stance on confronting such behavior, Latham says that practice leaders have an opportunity during the hiring process to evaluate factors beyond candidates’ clinical competence and “make sure they are willing to accept [the organization’s] culture.”

Learn more

  • A recent New York Times article examines which types of sexual harassment training in the workplace are effective and which ones sometimes worsen existing issues in the office.
  • Judith Holmes, JD, and Leigh Olson, vice president, Master Series Seminars LLC, Aurora, Colo., outline how to deal with disruptive physicians in their article for the May 2016 MGMA Connection magazine.
  • The MGMA Compliance Plan Toolkit, a web-based tool, creates a customized compliance plan for medical practices, including policies on sexual harassment and non-retaliation.
  • Will Latham, MBA, CPA, MGMA member, president of Latham Consulting Group, Chattanooga, Tenn., led a session on handling disruptive physicians at the MGMA 2017 Annual Conference, which is available among the Annual Conference session recordings. Hear more about his advice on successful strategic planning from his appearance on the MGMA Small Talk podcast.
  • Newsweek magazine outlines how doctors can better understand the needs of patients with a history of trauma tied to sexual abuse, based on a new study published in the Journal of the American Osteopathic Association earlier this week.

Chris Harrop, senior editorial manager, Publications, MGMA

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