Legal Eagle Eye Newsletter for the Nursing Profession (6)1 Jan 98


   Quick Summary: A nurse can sue for sexual harassment if she is subjected to unwanted sexual conduct from a supervisor which has the purpose or effect of unreasonably interfering with her work performance or creating an intimidating, hostile or offensive working environment.

   A nurse can also sue if a benefit of employment or the avoidance of adverse consequences was expressly or implicitly conditioned on submission to sexual demands by a supervisor or manager who had the actual or apparent authority to confer the benefit or to impose the adverse consequences.

   An employer must take action to remedy or prevent a sexually hostile work environment if the employer knows or should have reason to know harassment is taking place.

   However, if a supervisor who has significant control over a victim being hired or fired or the conditions of the victim’s employment uses that control to sexually harass a subordinate, there can be a lawsuit whether anyone higher up in the institution knew about it and even if an anti-harassment policy is in place.  UNITED STATES DISTRICT COURT, COLORADO, 1997.


   A male nursing supervisor who had interviewed and made the recommendation to hire several female staff nurses began making crude and offensive remarks to them and repeatedly physically accosted at least one of them over a period of twenty months.

   Complaints to higher management eventually resulted in the supervisor’s termination for sexual harassment, but that was not the end of the story. The nurses whose complaints most directly resulted in his termination began to experience what they felt was post-incident retaliation. This and the original course of harassment led to a civil sexual harassment suit in the U.S. District Court for the District of Colorado.

   The court had no trouble finding that the supervisor had sexually harassed the nurses in question. The nurses were awarded damages for pain and suffering and money to pay for counseling.

   What transpired after the supervisor was terminated was more difficult for the court to sort out. In general, an employer is strictly forbidden to discriminate or retaliate against an employee who has filed a complaint over a civil rights violation. Nevertheless, when an employee makes a claim of discrimination or retaliation, the court must assess the evidence to see if it is true or if there is a legitimate, non-discriminatory reason behind the what the employer did post-incident.

   In this case, the court ruled it was legitimate for the employer to transfer one of the nurses against her wishes to a comparable staff position in another unit, to resolve lingering deep tensions which had to be eliminated among the nursing staff, some of whom were resentful that this nurse had gotten their supervisor fired.

   The court also ruled the evidence indicated one of the nurses was not promoted post-incident because her civil service test scores did not warrant it, and that medication variances for which she was written up post-incident were not contrived, even though she perceived it as retaliation. Rubidoux vs. Colorado Mental Health Institute of Pueblo, 976 F. Supp. 1380 (D. Colo., 1997).