Hostile Work Environment » The Proactive Employer

A California physician’s assistant who claims to have endured a hostile work environment at a Sacramento hospital has declared victory in the amount of $168 million dollars in damages – perhaps the largest award granted to a single employee in United States history.

Ani Chopourian, a cardiac surgeon’s assistant, alleged that during her two-year employment at Mercy General Hospital she endured a hostile work environment and countless instances of harassment and was witness to patient abuse. She says she lost track of the number of ignored complaints she filed.

According to Chopourian, the complaints included report of a bullying surgeon who, on one occasion, supposedly stabbed her with a needle and broke the ribs of an anesthetized patient during a fit of rage. Other complaints ranged from remarks about her Armenian heritage and sexual harassment claims to violations of patient safety and employment law.

Though the hospital asserts her 2008 dismissal and denial of unemployment benefits was a result of professional misconduct including failure to show up for a shift and sleeping on the job, Chopourian believes she was wrongfully terminated for speaking up. Her attorney, Lawrance Bohm, alleges the hospital was a bullying and inappropriate environment where even patients were victims of passive aggressive behavior.

Bohm says, although Chopourian endured a “toxic workplace” she stayed because she loved heart surgery, the hospital was prestigious and she had family living in the area. After her dismissal in 2008, she kept her physician assistant privileges at the hospital and began working with a doctor in gynecologic oncology both at Mercy and another hospital until she gave her deposition in the lawsuit.

Just months into her new job, she was denied hospital privileges at Mercy and lost the job. A graduate of UCLA and Yale, Chopurian was deemed unemployable due to her lack of hospital privileges and found herself out of work.

“Cardiac surgery brings in the most money for any hospital, which is why they are willing to turn a blind eye to illegal and inappropriate behavior,” says Chopourian. She points out that there were “four very strong witnesses who were frightened to speak up but did so because they felt it was important that someone put a stop to this.”

According to Bohm,“There has to be boundaries established and enforced. Hospitals have to control the environment. You can’t let the lunatics run the asylum.” He believes the jury was “shocked by the workplace environment” after hearing witnesses tell of the “vulgarity and arrogance they claim humiliated female employees and put patients at risk.”

Officials at Mercy General Hospital are disappointed in the decision. They claim to be committed to providing a safe working environment – one free from sexual harassment and inappropriate behavior which is backed by strong policies and practices to protect employees. Standing by their actions and decision to fire Chopourian, they plan to appeal the decision.

Despite the verdict, the record judgment totaling $168 million in punitive damages, lost wages and compensation for mental anguish could be reduced on appeal or in settlement talks.

There’s been a lot of discussion this week about the launch of the eBossWatch ”National Sexual Harassment Registry”. This registry, modeled after the FBI’s National Sex Offender Registry, allegedly provides information to help people avoid sexual harassers. According to Asher Adelman, founder of eBossWatch:

“The eBossWatch National Sexual Harassment Registry will send a strong message to those intending to sexually harass their employees or coworkers that they will be publicly held accountable and will suffer serious consequences for their abusive actions. Now anyone will be able to search our national database and will instantly know if their potential boss or job candidate has been the subject of a sexual harassment complaint.”

There are a variety of problems with this. So many, in fact, it’s difficult to know where to start. First, the people listed in the registry are deemed “harassers” by eBossWatch, even though the site’s disclaimer states that this might not be the case:

Note: Only a very small percentage of sexual harassment complaints end up in court as most cases are settled before they go to trial. Because of this, the eBossWatch National Sexual Harassment Registry includes information on various types of sexual harassment complaints, including those that have gone to trial, those that have been settled out of court, and those that have not yet been resolved. Therefore, not all of the people listed in the eBosswatch registry have been found guilty by a jury.

The information contained in the registry is not comprehensive, and may not even be accurate. As Daniel Schwartz pointed out in an excellent blog post:

Case in point: Steve Paulus, a “boss” for New York One News, is listed on the registry. Indeed, when you click on the link to view the “boss review” you get another link to an article that lists the accusations against him.

The problem: A jury concluded otherwise by ruling in favor of the company on the underlying sexual harassment complaint. Of course, you’d never know that from the eBossWatch website. Are we really to believe that eBossWatch is putting an “end to sexual harassment” through this so-called “registry”?

Inaccurate and outdated information doesn’t seem to bother eBossWatch. In fact, it disclaims any responsibility for the accuracy and reliability of the information provided:

Interesting that this disclaimer mentions legality… eBossWatch also offers “background screenings” (for a fee of $19.95). In the service agreement for the background screenings, you’ll find some information on how you may be violating the Fair Credit Reporting Act by using the service (emphasis added):

4. YOUR ACKNOWLEDGMENT OF COMPLIANCE WITH THE FAIR CREDIT REPORTING ACT: The Fair Credit Reporting Act (FCRA) governs the activities of Consumer Reporting agencies, as well as the users of the information procured from these agencies. A Consumer Report contains information on a job applicant/employee’s character, reputation, and other personal data; therefore, use of such information is strictly regulated by the FCRA. Among other things, the FCRA prohibits employers from obtaining Consumer Reports unless the employer discloses to the applicant, in writing, that such a report may be acquired, and obtains the written authorization of the applicant/employee to inquire into this background information. The FCRA also requires employers to take additional steps when they make an employment decision based in whole or part on the background information. These steps are intended to give the applicant the opportunity to dispute any information contained in the background or Consumer Report.

eBossWatch urges all employers to review the restrictions and requirements of the FCRA. The Act’s citation is Public Law 91-508, Title 15, U.S.C. Sections 1681, et seq. Please note, particularly, the Permissible Purposes of Reports, as well as requirements on Users of Consumer Reports and Obtaining Information Under False Pretenses.

. Employment Purposes: By agreeing to this document, you certify and confirm that you are requesting eBossWatch to provide screening services only for the purposes of evaluating a potential manager or potential employer. To remove any doubt, you certify that you are NOT requesting eBossWatch to provide screening services for the purposes of considering an individual for employment, promotion, reassignment or retention as an employee.

I’m a little confused by this… you’re requesting screening services to evaluate a potential employee, but you’re NOT requesting screening services for the purposes of considering an individual for employment? Isn’t that the same thing in most people’s minds (legal scholars not included).

I think we can all agree that sexual harassment, hostile work environments, and workplace bullying are real problems that need to be addressed. But eBossWatch is not the way to do it. As Daniel Schwartz notes:

… it seems to be a message board, tabloid-ish site and a money-making venture. It may be good for making money but as a legitimate research tool, it appears to be lacking in many ways.

What is Family Responsibility Discrimination?

Family Responsibility Discrimination occurs when individuals with caregiving responsibilities – to children, parents, or disabled family members – are treated differently because of these responsibilities. To better understand what FRD is, consider the following examples of real-life situations in which individuals have successfully sued their employers*:

a mother was terminated from her job “because she was no longer dependable since she had delivered a child”;

a male Maryland State Trooper was denied leave to care for his newborn baby and told by his supervisor that his wife would have to be “in a coma or dead” for a man to qualify for leave as the primary caregiver;

an employer told a mother that he didn’t think mothers should work, saying “I don’t see how you can do either job well,” and that “women are not good planners, especially women with kids”;

an employer stated that he preferred to hire unmarried, childless women because they would give 150% to the job.

Another example of FRD (and one that I experienced firsthand two years ago): an interviewer asking female candidates – but not male candidates – if they plan to have children.

Is FRD Prohibited by Law?

The EEOC has issued the following guidance on FRD:

“Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment…” (EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities)

There are several different scenarios in which family responsibility discrimination constitutes unlawful disparate treatment under Title VII or the ADA. These scenarios include:

sex-based disparate treatment of female employees, focusing on sex-based stereotypes;

stereotyping and disparate treatment of pregnant employees;

sex-based disparate treatment of male employees, such as the denial of childcare coverage available to female employees;

disparate treatment of an employee with caregiving responsibilities for an individual with a disability;

harassment resulting in a hostile work environment for an employee with caregiving responsibilities.

It’s important to recognize that what initially appears as family responsibility discrimination may actually be sex-based or disability-based disparate treatment.

Proactive Steps For Employers

In order to ensure your workplace is free of family responsibility discrimination, follow these five common-sense steps:

Treat all employees the same: one of the most basic ways to avoid the problem is to treat all employees – and applicants – the same. When making employment decisions, ensure these decisions are based on sound business reasons and not on personal beliefs or preconceptions;

Have an EEO policy, and enforce it: your policy should clearly define which groups are protected from discrimination. Employees should know about your policy, and understand it. If an employee files a compliant under the policy, that complaint should be investigated thoroughly and promptly, and corrective action should be taken where appropriate;

Train managers and supervisors: managers and supervisors should understand the relationship between family responsibility discrimination and federal and state EEO laws. Reinforce that employees should be evaluated on performance all employment decisions must be based on legitimate, non-discriminatory reasons;

When interviewing, ask only job-related questions: focus on the applicant’s qualifications and ask questions related to the candidate’s ability to perform the essential functions of the job. Questions about marriage, children, or plans to have children could result in a failure to hire claim if the applicant is not selected;

Document, document, document: in the event of a performance problem, that problem should be thoroughly documented. If an adverse employment action is taken, and there is no record of poor performance, the lack of documentation may support a claim of discrimination based on a protected characteristics.

As always, the key to avoiding discrimination liability is to treat all individuals the same, and base employment decisions on valid business reasons.

The Proactive Employer

Record-Breaking $168 Million Awarded in Harassment Suit

National Sexual Harassment Registry Is Not What It Claims To Be

Family Responsibility Discrimination

What is Family Responsibility Discrimination?

Is FRD Prohibited by Law?

Proactive Steps For Employers