It is a lively Friday afternoon. As usual, just an hour from close, two separate frantic clients call into your practice: one, of a dog that has been vomiting hourly since yesterday morning, and two, of a suspected blocked cat. The cat arrives first, and you and your team swoop it to the back for further examination. The cat is aggressive, and it takes two nurses and one assistant to swaddle it into position for a cystocentesis. As you dive into the crowded huddle, needle in hand to collect the urine, you lean your left hand on the assistant’s back for support. You successfully collect the urine and finish the rest of your evening’s work. It has been a long week, but you feel good about the day’s outcome and head home. The next morning, before your shift, your practice manager calls to inform you that someone has filed a complaint against you, that you are currently under investigation, and that you are suspended until the investigation has finished. With not much time to process this sudden information, you do not ask any questions, and hang up the phone. Now what?
Sexual harassment is not an unfamiliar concept to most people today. Increasingly in the news because of the #MeToo movement, more victims are becoming courageous enough to speak up against predators that have, for many years, held a position of power and a sense of untouchability. Unfortunately for these victims, a second population exists with ulterior motives, people who are using this movement inappropriately to harm innocent colleague reputations, careers, and livelihoods. America has yet to develop a method that distinguishes a true victim from a disgruntled coworker, ultimately diluting the real victims’ stories and harming innocent people. In addition, the current misconceptions of large false reporting rates lead plenty of real victims to return to their fears of reporting sexual harassment or assault.
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.” Sexual harassment can be performed by people of both sexes and the act does not specify that the victim is to be of the opposite sex. A harasser may be any work-related individual (colleague, supervisor, or non-employee) and the victim may be anyone affected by the offensive conduct. Sexual harassment has two main types: quid pro quo and hostile work environment. Quid pro quo, a demand for sexual favors in exchange for employment opportunities, only requires one incident to file a charge. A hostile work environment, a workplace that is sexually demeaning, hostile, or intimidating, relies upon behavioral patterns to have validity.
There are a few deadlines to consider if proceeding in a sexual harassment case. In federal sexual harassment cases, the victim has to file a charge with the EEOC within 180 days. When the EEOC responds by issuing a “right to sue,” the complainant has 90 days to file a federal lawsuit. When investigating, the EEOC will consider the context and nature of the sexual behaviors.
Why Now?
What explains the rise in sexual harassment across America – or at least in its reporting? Historically, individuals risked professional and social suicide by accusing a colleague of inappropriate sexual behavior, consequences strong enough to suppress most victims’ voices. This culture existed, fairly unchanged until recently; and, in fact, in 2016, the EEOC’s total number of sexual harassment complaints was 15 percent lower than in 2010.
Harvey Weinstein’s sexual harassment case, though, created in October 2017 what has been termed the “Weinstein Effect.” While the EEOC has not released its annual numbers following the Weinstein scandal, state-level numbers suggest it has already had a significant impact in empowering victims to come forward and break the societal stigma. Looking at a state level, from January to March 2018, California’s Department of Fair Employment and Housing received 939 sexual harassment complaints, an 86 percent increase from the previous year’s 504. From October 2017 to April 2018, New York’s State Division of Human Rights received 353 sexual harassment complaints, a 60 percent increase from the previous year’s 220. While the reason cannot yet be nailed to the Weinstein Effect, these numbers are noteworthy.
Dan Cassino, an associate political science professor at Fairleigh Dickinson University, wrote a Harvard Business Review article suggesting an additional factor: that the apparent increased sexual harassment claims not only reflect empowered individuals reporting abuse, but also an increase of masculine insecurity as women rise in the workforce. This insecurity could be leading to additional inappropriate actions taken by a percentage of men to maintain a sense of power.
Impact in the Veterinary Industry
Since 1986, women have outnumbered men in the veterinary industry, first in school and now in the field, and this trend is continuing. The American Veterinary Medical Association (AVMA) reports that the current veterinary market consists of 55 percent female and 45 percent male veterinarians. Feminization of the veterinary industry is even more apparent when looking at technicians, a field long consisting of females. In 2017, the Association of American Veterinary Medical Colleges reported that women hold 90 percent of veterinary technician positions. If Dan Cassino’s hypothesis is true, the veterinary profession risks significant gender conflict and potential concurrent rises in sexual harassment claims with its continuing feminization.
Here’s one example of how a large veterinary corporation is addressing sexual harassment claims. Mars (Banfield, Blue Pearl, Pet Partners, and VCA) has a zero-tolerance policy that permits immediate discipline or termination of an alleged harasser for just one indiscretion.
Accused of Sexual Harassment? What to Do
Sexual harassment remains a relatively young concept with all-too-often vague workplace guidelines for protecting employees both from sexual harassment and false sexual harassment claims. Returning to our hypothetical veterinarian faced with a sudden sexual harassment claim in this article’s introduction, the following steps must be taken if you are accused:
- Hire a qualified criminal defense attorney immediately.
- Realize the importance of these accusations and their effect upon your job stability and reputation.
- Prepare for the cost of high legal fees.
- Know that you are not required by law to say anything to the police.
- Remain calm and do not allow emotions to dictate your actions.
- Understand that, when an employer receives a sexual harassment complaint, the law requires them to take immediate remedial action. The process is going to move fast, and you will have to organize and present your thoughts.
- Participate fully in the investigation. This means to document everything, compile a list of possible witnesses, and ask to see the written complaint. In the theoretical instance we’re using, you would write down the names of the two technicians as well as any other employees in the room during the alleged event. You want to quickly be able to address any misinterpretations and to calmly share your recollection of the event.
- Disclose any mitigating factors. If, for example, this assistant was someone you used to have a sexual relationship with, that’s an important detail to share with your investigator. While the hospital may terminate both of you for holding a clandestine sexual relationship, the extra details you provide will help the investigator understand the situation.
- Share context. You may want to share, for example, that in the incident being investigated, you had not thought of the assistant’s reaction. People do not uniformly or predictably react to a brush of the hand, and addressing any misunderstandings, such as resting your hand on a coworker’s back during a busy time, will allow all parties to share viewpoints and clarify interpretations. It is important to tell your investigator you had not meant to offend anyone, and your intentions were misunderstood.
- Reaffirm your commitment to the practice’s anti-harassment policy.
There are also a few steps to avoid, and here we leave our hypothetical example and are speaking more broadly. First, when explaining the situation, you should not state that, because you and the victim were the same gender (if this is the case), the intention could have not been sexual. Second, you should not state that your actions or phrases were based on an inaccurate assumption of the victim’s gender or sexual orientation. Finally, you should not use the victim’s promiscuous history, if that’s potentially true, to explain your reasoning for an incident.
The reality is that employers today often take strict remedial actions against the alleged harasser out of concern for business liability. This is done, perhaps with the best of intentions, to avoid further antagonizing the complainant, and helps to minimize the employer’s risk if facing a discrimination charge with the EEOC. In fact, since most workplace contracts are “at will,” termination is the quickest action that the employer can take to defend the practice.
What Next?
If your practice declares you guilty of sexual harassment, your attorney can negotiate your exit to receive a severance package and a neutral reference. By law, the employer must keep the allegations confidential, not discuss the situation or criticize you with others present. Ideally, this minimizes the risk to your reputation. If you are lucky enough to reach an understanding that the complainant was mistaken, you should ask the employer/investigator to refrain from putting any of this information into your personal file.
The situation is quite different, though, if a coworker filed a sexual harassment claim with malicious intentions. If these intentions become evident during the investigation and the investigator proves the claim to be false, that complainant faces a number of potential consequences: legal penalties (court fines, contempt order, and possibly even criminal charges), a slander lawsuit, perjury charges if the individual lied during a trial proceeding, and employment termination. And, because even settled false claims brand you with a virtual scarlet H by peers, you may sue the complainant for the losses associated with the false claim to cover reputation damages, lost wages, and employment termination. If terminated by the practice, you can also claim defamation.
Proactively Protect Yourself
Sexual harassment claims can cause massive detriments to practices, so many human resource departments – corporate and private alike – attempt to mitigate damage to them. This means that the human resource team often makes decisions in the best interest for the practice, so it’s best if you can simply protect yourself before an incident ever arises.
Scott Stender, a Workplace Consultant and retired police officer, states that “you don’t need to work in fear. You do, however, have to understand professional boundaries and use emotional intelligence. This can be harder than it looks, as in the workplace many of us confuse professional and personal boundaries. You need to remember that when you’re talking with a co-worker or employee, it’s not the same as talking with your friend.”
To avoid being accused of sexual harassment in today’s work environment, it is best to follow these recommendations:
- Regularly reflect on your actions and think about how they could be interpreted.
- Be cautious about mixing personal and professional lives.
- Physical contact at work should ideally be limited to a handshake.
- When giving a compliment, focus on work performed, not that person’s physical appearance.
- Remain self-aware at practice events by:
- limiting alcohol intake
- not staying late
- attending only company-sponsored activities
These are not always easy guidelines to follow in the sometimes emotion-filled veterinary profession. Ultimately, if you do something that you believe to be questionable, seek an employer’s assistance before the employer comes looking for you.
Sexual Harassment Investigations
Employers must deal with the stress of a potential lawsuit, the emotional impact of the investigation on the person making the claim, and the negative impact on the person being accused, especially challenging if the claim is difficult to investigate. It is challenging to remain objective to ensure fairness to both parties when faced with a sexual harassment complaint.
And, you, as the employer, may be held liable if you knew about or should have known of the harassment and failed to take “prompt” effective remedial actions. In some cases, the U.S. Supreme Court has ruled that employers in hostile work environments exercised reasonable care and the complainant unreasonably failed to take advantage of corrective opportunities to avoid harm. It is important to know that, while tempting, the employer cannot conduct a criminal background check using an outside agency without an employee’s prior consent.
A complaint, by itself, is not proof of sexual harassment, nor does an unproven allegation falsify a claim. You must stay open-minded and thoroughly investigate for the benefit of both parties. As this is a subjective and emotional matter, statements made should not be analyzed in a vacuum. For example, a lie does not immediately indicate that the entire story is false. The narrator may be feeling ashamed, embarrassed, or fearful about how previous actions might be interpreted. Sometimes, the accuser may not understand the definition of sexual harassment or its context. The reported conduct may have been mutual, or the accused may not have reasonably been able to know that comments made were unwelcome. When investigating, you should think of two questions to help guide the investigation:
- Did what is alleged occur?
- If it did, what is the significance of it (i.e., does it meet the standards of sexual harassment)?
These are good questions to ask not only of your two involved parties, but of every possible witness of the event. Although you want to address this issue efficiently, you must avoid acting without a thorough investigation. This risks a possible lawsuit, regardless of whether the harassment occurred. And, what should you do if it is ultimately difficult to discern the truth? If in doubt, you can justifiably refrain from taking the harshest possible response and discuss with the accused that future allegations will be seriously investigated with a strong potential for termination.
Once a conclusion is reached, the focus turns to appropriate remediation, if needed. The employer faces a few legal challenges in this area and must morally recognize the consequences of his/her decision to both parties. Here is one example, this one associated with protected class: you cannot punish a person more harshly than someone outside of his/her protected class. For example, an accused 30-year-old veterinarian should not be terminated when, a year ago, a 60-year-old veterinarian in a similar situation was given a warning.
Throughout even this part of the process, you must remain cautious about how you speak about an employee. As previously mentioned, employees may claim defamation against a practice in an attempt to remedy their livelihood or reputation. For an employee to claim defamation, the statement must be published, false, injurious, and unprivileged.
Looking to the Future
The veterinary practice provides for specific challenges with sexual harassment. Its traditionally small, owner-operated, family-type hospitals often create a culture of sharing personal issues, prevalent jokes, and methods to release stress. In addition, handling animals necessitate veterinarians and staff to work in close physical proximity. Practices expand these gray risk areas if they employ family members and/or allow intra-hospital relationships, because – even if not objectively true – this can create appearances of favoritism. In more extreme cases, this can lead to the belief that people who aren’t sleeping with the boss aren’t getting the perks.
As a practice owner or manager, you must identify and address these risk areas. While it isn’t realistic to completely change the veterinary culture, you as the employer can work to mitigate human resource nuances before they become problematic. This would include mandating employees to disclose relationships to you, minimizing family-member hires, and establishing a protocol that encourages a professional demeanor in the workplace.
So where do we go from here in the veterinary community? We go forward. We should not regard sexual harassment lightly, especially as women and men finally muster the courage to address their harassers. We should implement and share clear and firm workplace policies, discuss sexual harassment with all of our staff, and favor open conversations over quick online tutorials. When faced with a complaint, we should investigate it seriously out of respect for its consequences to both parties. If wrongly accused, we should stay present and be prepared to fight for our reputations. We must devise universal sexual harassment protocols and sexual harassment definitions to ensure appropriate remediation. Hopefully, we can take the initiative to be one of the first industries to successfully fight this world-wide phenomenon.
