Indecent Proposals For Nurses Experiencing Harassment At Work, The Law Is On Their Side

It began when he started touching Laura, an OR nurse, on the shoulder and back. 

The harassment quickly escalated. While Laura (not her real name) washed her hands at the scrub sink, Nathan (not his real name), a surgical technician, began putting his hands into her pants pockets and whispering sexually explicit suggestions into her ear.

When Laura didn’t respond to his advances, Nathan became verbally abusive. Surgeons requested that they not be put in the same OR together because Nathan’s behavior was so disruptive. As a result of Laura’s complaint to her supervisor, Nathan was “counseled.”

But the harassment didn’t stop. Instead, it became more aggressive and potentially violent. Nathan began leaving messages on Laura’s home answering machine and following her. Sometimes, he hid in the parking lot and jumped out to scare her.

When Laura filed a formal sexual harassment complaint with the hospital, nothing happened. No investigation, no hearing, no disciplinary action. She finally quit. Nathan is still on the job.

Nurses like Laura who face sexual harassment should know there are laws designed to protect workers from discrimination and harassment based on sex, race, national origin, religion, age, or disability. Harassment that is severe or so pervasive that it creates an abusive or hostile work environment is illegal. But, as in Laura’s case, that doesn’t always stop it from happening.

Persistent Problem

Harassment and discrimination are “alive and well,” according to Nilda Peragallo, president of the National Association of Hispanic Nurses and interim hair/associate professor in the Department of Behavioral and Com-munity Health at the University of Maryland School of Nursing in Baltimore.

“I think people are more careful about how they say it or when they say it or where they say it, but I think it still happens,” she added.

According to a survey by NurseWeek Publishing and the American Organi-zation of Nurse Executives, 13{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of nurses nationwide reported they personally experienced discrimination based on gender, age, or race while working as a nurse. Meanwhile, 19{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} experienced sexual harassment in the year before the survey. In addition, 27{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of non-Caucasian nurses experienced discrimination during that same time period.

Male nurses reported the highest rates of discrimination, with 29{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} experiencing discrimination based on gender, age, or race, and 32{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} reporting experiencing sexual harassment or a hostile work environment related to the conduct of physicians.

When the statistics are broken down regionally, nurses in New England fare best in gender, age, and race discrimination, while nurses in Texas, Oklahoma, Louisiana, and Arkansas report the highest rate (20{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}). Nurses in California, Nevada, Oregon, and Washington come in a close second at 16{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}.

Although the 2000 U.S. Census revealed that Hispanics represent 12{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of the population, Peragallo points out they make up only 2.2{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of the nursing workforce. “In the educational system, it’s implied that minority means ‘less than,’ and such a student would not do well.”

She has found that assumptions are made that Hispanic students cannot speak English and often are directed to associate degree programs, resulting in fewer graduates from baccalaureate and higher degree programs who are prepared to enter teaching and other leadership roles.

Hazy Definition

“Federal laws prohibiting discrimination don’t prohibit anything that somebody might be offended by,” said Dianna Johnston, assistant legal counsel at the Equal Employment Opportunity Com-mission in Washington, D.C.

Asking a co-worker out on a date is not necessarily harassment, although some people in certain situations might be offended by it. It may rise to the level of harassment, however, if the requests persist over a period of time, particularly after the person has asked that it stop.

“One of the things the courts try to do is balance the need to protect employees from abusive work environments and protect employers from employees who are hypersensitive,” Johnston said. “There’s no magic bright line that distinguishes abuse that is illegal from something that is merely obnoxious or offensive.”

Surrounding circumstances are crucial. In Oncale v. Sundowner Offshore Services Inc., the Supreme Court distinguished between a football player being patted on the buttocks by a coach after a winning play and similar conduct in an office setting. Using religious or ethnic slurs will probably cross the line fairly quickly. But even in some cases where the employer has used a racial slur, courts still found no race discrimination, Johnston said, because either there were too few instances or it was not considered severe or pervasive enough to create an abusive work environment.

“It’s hard to get a measure on harassment,” agreed Lynn Wildman, a labor representative for the California Nurses Association. She believes, however, the line is crossed when a nurse feels threatened or uncomfortable about something that is said or done. “What makes it difficult to define,” she said, “is that, sometimes, whether or not behavior is harassment depends on how the person on the receiving end perceives it.”

Looking at Solutions

“Sexual banter was the norm when I worked in the OR, and it probably still is in a lot of places,” said Maggie (not her real name), a manager of operating room services, “but now, as the supervisor, I don’t tolerate it.” She has filed complaints with the human resources department so staff members don’t have to. “Once I followed through on a couple of situations, it hasn’t been much of a problem,” she said.

Maggie acknowledges that her success wouldn’t be possible without support from hospital administration and the chief of the surgical division. She is quick to point out, however, that she is helping them enforce discrimination and harassment laws, and believes it’s one of the things that helps her retain staff nurses.

“Even if the administrators don’t necessarily understand how harassment offends and belittles people, they usually understand staffing and shortages,” she said, “and sometimes you have to put it in terms of the bottom line.”

What can an employee do about discrimination in the workplace? There are several key steps.

Communicate it. “Frankly, the majority of the time, when people are asked to stop, it stops,” Johnston said. “Secondly, if the person is not a direct supervisor and no complaint is made, the employer is not going to be liable if they don’t know about it.”

If direct confrontation is not possible, make a complaint to your supervisor. If it’s your supervisor who is doing the discriminating or the harassing, you may need to go up the chain of command or to your human resources department. Consult your employer’s policy manual regarding where and how the complaint should be made. Retaliation for making a complaint is also illegal.

“One of the interesting things that happens is that you will see case after case in which the court finds an employee was not discriminated against because of race or sex,” Johnston said, “but the employer was liable for retaliating when the employee complained.”

Document it. This cannot be overstated, and it applies to both employees and employers. Write down conversations verbatim, identifying witnesses, the action you took, and the response you received (or didn’t receive). Dates, times, names, and places are all things you may not remember later on. Keep a small notebook handy, but don’t leave it at work.

Whether a claim is proved often comes down to a credibility contest between the only two witnesses: the alleged discriminator or harasser and the victim. Johnston cautioned that the burden of proof is on the person who makes the complaint of discrimination or harassment.

“You have to have more evidence on your side showing that some event happened or statement was made than the employer has on their side that it didn’t happen,” she said.

Defend against it. Have a history of good evaluations and a satisfactory work record. Always request and keep a copy of all written evaluations.

Seek legal advice from an attorney well-versed in this area of the law when it comes to bringing a lawsuit or taking action against an employee for engaging in prohibited conduct. You can contact your state’s nurses association for information and guidance.

Educate yourself. Learn about the law and institutional policies and procedures. Keep up with changes. Offer in-service training to prevent prohibited behavior and illegal actions.

“Discrimination and harassment are a reality in this country, but there’s legal recourse, and I think people aren’t accepting it anymore like they used to,” Peragallo said. “They shouldn’t have to.”

This article was reprinted courtesy of NurseWeek Publishing

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