Friday, March 2, 2012

Physician's assistant wins record $168 Million verdict in harassment suit

A Sacramento jury has awarded a whopping $168 Million to a hospital employee who sued her employer, Sacramento's Mercy General Hospital, for harassment. Mercy General Hospital is run by Catholic Healthcare West, now known as Dignity Health (although there is not much dignity in the events reported in this lawsuit). The verdict is thought to be the largest ever for a single harassment claim in U.S. history, and because the hospital intends to appeal the verdict, it could have ramifications for all of us.

Ani Chopourian, a physician's assistant, worked at at Sacramento's Mercy General Hospital for two years. "I have never seen an environment so hostile and pervasive,” said Chopourian of the harassment she endured, which led to her filing at least 18 separate complaints with her supervisors. She was fired after filing her last complaint, which dealt specifically with the quality of patient care and doctors' demeaning behavior. The final complaint was deemed "professional misconduct" by Mercy General Hospital.

According to a report in the Los Angeles Times, among the complaints filed by Chopourian are details of a surgeon who stabbed her with a needle (and in another incident, broke the ribs of a patient in a fit of rage). Yet another surgeon regularly greeted her with the phrase "I'm horny" and slapped her on the bottom; a third called her a "stupid chick" and made racially disparaging remarks about her Armenian heritage, asking if she had joined Al Qaeda.

The verdict includes $125 million in punitive damages and $42.7 million for lost wages and pain and suffering.

Under California and Federal employment law, the employer was liable for the behavior of the surgeons [Faragher v. City of Boca Raton (1998) 524 US 775, 789–790, 118 S.Ct. 2275, 2284]. California law takes things a step further and under FEHA, the employer is “strictly liable” for quid pro quo sexual harassment perpetrated by a supervisor and has no defense to liability. As an employer, once you know or suspect that harassment or discrimination is occuring in your workplace, it is unlawful for you “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” [Government Code § 12940(k) .]

My first thought on the Chopourian case was "what were they thinking?" The steps an employer takes to prevent harassment from occurring and the actions taken to investigate and remedy complaints affect whether the employer will be held liable for the harassment. Both California and Federal Employment law set out clear guidelines for preventing harassment and discrimination, and handling complaints when they come in: it is hard to believe that a huge employer like Catholic Healthcare West did not follow the law.

In California, employers with at least 50 employees must provide all supervisory employees lwith at least two hours of interactive training regarding sexual harassment prevention and correction at least once every two years. If you hire a new supervisor, you must train them within six months of their hire date. [Government Code § 12950.1(a),(c).]

Under FEHA, you must also:

—display a poster on the illegality of sexual harassment in the workplace

—distribute an information sheet on sexual harassment to all employees.

Get a copy of the poster and information sheet from the Department of Fair Employment and Housing..

If you don't use the DFEH information sheet, you must provide equivalent information to all employees that contains the following information:

—the illegality of sexual harassment

—the definition of sexual harassment under applicable state and federal law

—a description of sexual harassment, with examples of proscribed conduct

—internal complaint process available to the employee

—legal remedies and complaint process available through the DFEH and FEHC

—how to contact the DFEH and FEHC; and

—legal protection against retaliation for opposing sexual harassment or for filing a complaint or otherwise participating in an investigation, hearing or other proceeding regarding a claim of sexual harassment.

However small your business, having a Workplace Discrimination Policy that mirrors California and Federal law is incredibly helpful. My take on using these in smaller workplaces is simple: it is much easier for a small business to defer to an objective guideline - the employee handbook - than it is to step up and tell an employee that they are out of line without any backup. For assistance in drawing up a Workplace Discrimination Policy, you should contact an employment attorney who specializes in representing employers.

As always, this is not intended as an advertisement and is offered as a service to my clients and the community. Nothing herein is intended as legal advice and the above is for informational purposes only. Every situation is different and you should consult a licensed attorney for advice tailored to your business needs.

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