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Amidst a flurry of allegations, firings, and the re-aligning of the social consciousness surrounding sexual harassment, a federal appeals court sent a clear message to UConn Health and by extension, hospitals and health systems everywhere. Ignorance of sexual harassment in your facilities will not shield you from penalty if you should have known.
In the case of a dental assistant who sued UConn Health after allegedly being sexually harassed for months by a dentist she worked with in their system, a decision rendered Tuesday by the Second Circuit Court of Appeals upheld a previous verdict that found the system liable because they should have known what was going on, and also upheld the $125,000 in damages paid to the dental assistant, Mindy MacCluskey.
The court said the hospital was aware of a prior complaint against the dentist, Michael Young, that was logged against him in 2000 that accused him of sexually harassing another dental assistant. An investigation occurred, and Yong was given a "last-chance" agreement that included a ten-day suspension and the threat of imminent termination if similar behavior occurred again.
MacCluskey and Young worked started working together in a clinic at a juvenile correctional facility in 2008, and about six months into her time there, Yong began harassing her through comments on her appearance, her personal life and invasions of personal space. MacCluskey complained about the behavior to two co-workers.
After telling Young's supervisor she had the situation under control, the supervisor took no further action. The supervisor was unaware of Young's previous behavior or last-chance agreement.
In 2010, the behavior continued and escalated to inappropriate emails and touching, and one occasion where "Young blocked the doorway, grabbed MacCluskeyʹs waist, pulled her close, and put his hand up her shirt." MacCluskey reported the behavior to her own supervisor, filed a report and an investigation ensued. The investigation found that in addition to his harassment of MacCluskey, he had given two other workers "shoulder rubs" and violated UCHC's sexual harassment policy, court papers said.
The court said it was undisputed that MacCluskey was subjected to "actionable sexual harassment" by Young, who was technically a co-worker, not a supervisor. Young resigned rather than being fired. MacCluskey filed suit against UCHC in 2013.
While UCHC contended they had no knowledge of Young's harassment of MacCluskey prior to her 2011 complaint, and had provided a reasonable means of filing a complaint against him, the appeals court's ruling to uphold the verdict against the hospital hinged on their decision that the hospital should have known it was going on and should have been supervising Young more closely given his earlier behavior. They cited several specific failures on UCHC's part including: Young's supervisors should have been made aware of his last chance agreement but were not; his supervisors should have been monitoring him given the "isolated and close working environment"; and Young's supervisor who spoke to MacCluskey should have spoken to her in a private setting, asked follow-up questions but and conducted a "deeper inquiry."
The court also said it wasn't enough that UCHC had a sexual harassment policy in place. "the existence of an anti‐harassment policy is not dispositive on the issue of whether the employer exercised reasonable care to prevent and correct harassing behavior," the appeals court ruling stated.
It's yet another glaring indication that pleading ignorance will not exonerate hospitals and health systems from being liable for bad behavior in their facilities. Providers must take steps to implement thorough policies, educate and train all staff including executive leadership, and take complaints seriously. If a staff member who has been found guilty of harassment is allowed to remain, than that individual's supervisors have responsibility to be vigilant in making sure the behavior is not repeated so that a hospital that is supposed to be a place of healing is not turned into a hostile work environment.