Sexual and Other Harassment in the Operating Room Setting
by Michael J. Schoppmann, Esq.
Kern Augustine Conroy & Schoppmann

BACKGROUND: THE LAW

Title VII of the Federal Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to .... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin.

In addition, under the New York Human Rights Law, employers may not discriminate on the basis of age, race, creed, color, national origin, sex, disability or marital status.

Harassment by an employer on the basis of sex constitutes discrimination and is in violation of Title VII. In addition, the federal and state courts have expanded the concept of work place harassment to include all the protected classes of employees listed above. For example, harassing a fellow employee because of his/her race, religion, age, or disability is equally in violation of Title VII and the New York Human Rights Law as is sexual harassment.

DEFINITION OF SEXUAL HARASSMENT

What kind of behavior gets any employer, including a surgeon or operating room nursing supervisor, in trouble for sexual or any other form of prohibited harassment?

Quite commonly, when job benefits are granted or withheld based on submission to or rejection of unwelcome sexual advances or favors. This is known as quid pro quo harassment and includes the following types of behaviors:

- making continued suxxess and/or advancement depend on agreeing to sexual demands
- assigning more onerous tasks or discharge for rebuffing sexual advances
- refusal to hire for not acquiescing to sexual advances
- failure to promote for not meeting sexual expectations or stereotypes

Another type of sexual harassment occurs absent any economic effect but subjects the employee to a hostile work environment. Complainants must demonstrate the presence of a pervasive atmosphere of discriminatorily severe or unwelcome working conditions that have the purpose or effect of unreasonable interfering with any individual's work performance or creating an intimidating, hostile or offensive work environment. Unfortunately, quite often, employees can demonstrate both types of conditions occurring simultaneously.