Sexual harassment puts its victims in an uncomfortable situation, but not all uncomfortable situations are sexual harassment.

You might be surprised to learn which of the following incidents would — and would not — be considered sexual harassment.

Sexual harassment's gray areas
Of course, it's also possible that the answers to 1, 3, 5 and 7 could be "This might be sexual harassment, if ... ." Context is critical in every situation. The addition of a few more facts can open an incident to a wider, more costly interpretation.

For example, a surgeon who repeatedly intimidates a particular nurse with sexually oriented conduct because she is a woman (like one who discriminates against a particular race, age or disability) has violated the law, but a surgeon who is abusive to everyone technically has not. It's not illegal to be offensive in the workplace, as long as you're offensive to everyone without exception. We call this the "equal opportunity jerk" defense.

Conversely, an employee who says sexually oriented conduct among her co-workers has created a hostile working environment may be complaining about conduct that would offend the average person, but if they've previously participated in the remarks and joking, there may be some question as to whether the conduct was actually offensive to this particular employee. Both of these aspects play a role in determining whether harassment has occurred.

Harassment on the basis of sex violates the anti-discrimination laws set forth in Title VII of the federal Civil Rights Act of 1964. Most states have similar legislation as well. Under the federal law, unwelcome sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature constitute harassment when:

• an employee's submission to this conduct explicitly or implicitly becomes a condition of employment,
• an employee's submission to or rejection of this conduct impacts employment decisions, or
• this conduct interferes with an employee's performance or creates an intimidating, hostile or offensive environment.

Sexual harassment can include touching in more than a casual, friendly way, propositions or advances, commenting about body parts, joking about sex (either the act or the gender), or using an employment position to threaten, suggest or imply sexual favors.

What must you do?
From a practical standpoint, it's not necessary for you to decide whether an incident is a legally actionable case of sexual harassment. That's the job of the federal Equal Employment Opportunity Commission (or the corresponding state agency) and the courts. Your role is to determine whether your employees' behavior has violated your facility's anti-harassment policy and what, if any, discipline or corrective action would remedy the situation. Ideally, taking action at the earliest possible opportunity can prevent unresolved complaints from ever winding up in front of government agencies or a judge and jury. Some things you can do:

• Create a zero-tolerance policy. A proactive response to violations of your anti-harassment policy requires, first and foremost, that your facility has adopted such a code of conduct before an incident arises. Your policy should include a statement expressing zero tolerance for harassment in the workplace for any reason, on any basis. It may list a range of protected categories (not limited to gender alone) and examples of intimidating or disruptive behavior (not limited to sexually oriented conduct alone).
• Promote non-punitive reporting. Ensure that, along with the anti-harassment policy, your surgeons and staff understand the confidential, retaliation-free complaint process that offers them the ability to address potential violations of the policy.
• Act swiftly. Investigate complaints promptly, consistently and thoroughly. Doing nothing is the most dangerous response to reports of harassment. Question the employee who has lodged the complaint as well as the alleged harasser and any witnesses to the incident. Be sure to document your responses to each complaint.

Does every complaint require an investigation? Absolutely. Keep in mind, however, that responses might vary depending on each individual situation. Not everything is going to be a 5-alarm fire. You've got to review each incident on the facts, but you've got to take each one seriously. Follow up with employees who've filed complaints to inform them of the outcomes.

If your investigation determines that an incident has violated your facility's conduct policy, you must attempt to resolve the situation by appropriately correcting the offender's behavior and providing a remedy to the offended. Possibilities include an apology meeting between the employees, a disciplinary interview, a sensitivity training session or even a rearranged schedule that prevents the offended from having to work with the offender.

What's more important?
Sexual harassment isn't just an employment law issue. It's a patient safety, quality of care, quality of life and accreditation issue as well. In Sentinel Event Alert 40, published in July 2008, the Joint Commission included sexual harassment among the intimidating and disruptive behaviors that — through "a history of tolerance and indifference," not to mention victims' hesitance to be whistleblowers — can lead to a ripple of negative effects such as medical errors, dissatisfied patients and poor employee retention. Don't let it go unchallenged at your facility.