Same-Sex Sexual Harassment: Court Says Nurse Has No Case.
Legal Eagle Eye Newsletter for the Nursing Profession
November 2016
All of the female nurse’s coworkers were women.
The Court must look to see if the victim in this case was sexually harassed because of her own gender. Same-sex harassment can amount to illegal gender discrimination in some possible scenarios, none of which is present here:
A gay or lesbian same-sex supervisor sexually desires the victim and treats him or her in a way that is sexually charged;
There is no sexual attraction, but the harasser displays hostility to the presence of the victim’s gender in the workplace or a particular role in the work-place, such as a male doctor who believes that men should not be nurses who treats male nurses with hostility;
The harasser’s conduct is motivated by a belief that the victim does not conform to the stereotypes of his or her gender, like male supervisors who advise a woman she should walk, talk and dress more femininely to improve her chances for gaining personal approval in the workplace;
Female supervisors might display hostility to other females in certain work roles.
UNITED STATES COURT OF APPEALS THIRD CIRCUIT October 6, 2016A registered nurse who had worked for the hospital nine years was transferred to a new floor. Her work environment on the floor was sexually offensive, the nurse would later allege in a lawsuit against the hospital. Her female nurse coworkers regularly joked around with each other making lewd gestures, pretending to grope each other and making sexual comments. Someone posted on Facebook photos of other female nurses on the unit in uniform touching each other’s breasts and genitals.
The nurse’s complaints to her supervisors led to no positive action and did lead to a threat of termination. The nurse was in fact terminated over a medication error. The US Court of Appeals for the Third Circuit (Pennsylvania) dismissed the sexual discrimination case the nurse filed against her former employer.
US and state antidiscrimination laws prohibit employment discrimination based on the victim’s gender. A sexually hostile work environment is one form of gender discrimination. A sexually hostile work environment means that the workplace is permeated with discriminatory intimidation, ridicule and insult that is so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive work environment.
With this nurse’s case the biggest problem the Court found was that the sexual harassment allegedly perpetrated by the nurse’s coworkers had nothing to do with the victim nurse’s own gender. Another problem was the fact the co-workers’ conduct, even if it did rise to the level of harassment, was not motivated by salacious or malicious intent toward the nurse or even directed specifically at her. The nurse’s allegations, according to the Court, painted a picture of an uncouth and unprofessional workplace. However, her coworkers put their lewd conduct on display for all to see, without regard to race, color, religion, sex or national origin, leaving no possibility for anyone to claim illegal discrimination.
Betz v. Hospital, __ Fed. Appx. __, 2016 WL 5845696 (3rd Cir., October 6, 2016).More references from nursinglaw.com
http://www.nursinglaw.com/samesex.htm
http://www.nursinglaw.com/lesbian-nurse-sexual-orientation.htm