Journal of Employee Assistance Vol. 48 no. 2 - 2nd Quarter 2018
Legal Perspective: EA Professionals & Sexual Harassment – Part I
By Robin Sheridan, JD, MILR
As the number of celebrity sexual harassment allegations grows, employers across the country are evaluating their policies, trainings, and organizational culture in an effort to avoid being featured in the next headline. While employee assistance (EA) professionals can play a pivotal role in an employer’s fight against workplace harassment, that role must be balanced with the confidentiality obligations owed to the client and understood by all parties, including the employer and the EA professional.
Duty to Warn
As discussed in my article in the 4th Quarter 2017 JEA, there are limited occasions when an EA professional is permitted to breach his or her duty of confidentiality to the client in order to warn of danger. This standard varies from state to state, but it is generally assumed when an imminent risk of substantial harm exists.
It is not difficult to imagine a scenario in which an employee’s experience of sexual harassment leads to fear for the safety of the employee or a third party. In these circumstances, a Duty to Warn analysis should be conducted to determine if, under the relevant state law, confidentiality may be breached and how to do so by releasing the least amount of confidential information as possible.
Duty to Report
Most states have laws requiring that an EA professional report the abuse or neglect of a minor, but few impose mandatory reporting for abused or neglected adults other than an adult-at-risk or a vulnerable adult. In Wisconsin, for example, reporting is required for any adult who has a physical and/or mental condition that substantially impairs the ability to care for his or her own needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.
A Duty to Report may also arise if the conduct rises to the level of assault and the state requires reporting of the crime. To the extent that your state requires reporting, it also likely extends immunity to your report so that you may (and indeed must) report and can do so without fear of action for breaching confidentiality.
Does the Employer Understand and Acknowledge Your Duties?
Although not historically addressed in position descriptions, the national conversation on sexual harassment suggests that we should be calling out expectations in this regard in position requirements. If not, there is a high probability that you, and the employer for which you provide services, will NOT be on the same page.
Consider, for example, if you are an internal EA professional employed by the same organization that employs your client. As an employee, you are bound by the employer’s policies. One of those policies likely requires all employees to report harassment. As noted earlier, however, as an EA professional you will not be able to breach confidentiality to report harassment to the employer except in very limited situations. Your employer should acknowledge an exception to the policy that requires reporting – both in the policy itself and in your position description – both for your protection and the protection of your client.
The same principles apply if you are an external EA professional contracted to offer services to the employer. Be sure that your services agreement makes it clear that your confidentiality obligations are to the individual client and you are unable to report violations of the policy (including harassment).
Ideally, the agreement contains a provision that clearly delineates your role, such as described in the following two paragraphs.
Relationship of the Parties. Nothing in this agreement shall be construed to create a joint venture or partnership between the parties. [EA professional] shall act solely as an independent contractor and not as an agent, servant, employee or representative of [employer].
Consequently, neither party has made, and neither party shall make, any statement or take any action that might cause a third party to believe that it has the authority to transact any business, enter into any agreement, or in any way bind or make any commitment on behalf of the other party unless expressly authorized by a duly authorized officer of the other party.
Should You Attempt to Convince the Client to Report to the Employer?
While always a matter of professional judgment, we recommend that you encourage clients to report the incident. Self-reporting is the first step in resolving the situation, whereas a failure to report likely means that the suffering will continue.
You can support your client by understanding and educating him or her on the employer’s applicable policies, including, for example, the harassment policy (and duty of the client to report), investigation guidelines (what they can expect post-report), and non-retaliation policy (protecting the client from retribution for reporting).
Your knowledge of applicable policies and procedures may also help the client prepare for the next steps. For example, employers are required to complete a thorough investigation – therefore, the client should be made aware that the employer cannot promise complete confidentiality.
Should I Advocate on Behalf of the Client?
Consider this decision carefully: Depending upon the law of the jurisdiction in which you practice, you may or may not be protected from employer retaliation should they find your advocacy disloyal.
Before sharing anything with the employer, get written authorization from the client that clearly articulates what information may be shared.
Advocacy: Case Example
In DeMasters v. Carilion, 796 F.3d 409 (4th Cir. 2015), an EA professional (DeMasters) worked as a consultant for Carilion Clinic. During a counseling session, an employee/client revealed that his manager had been harassing him. After hearing the employee’s evidence, DeMasters concluded that the employee was a victim of sexual harassment in violation of Carilion’s sexual harassment policy. DeMasters helped the employee formulate a plan to report the harassment.
Following the employee’s report, the employer investigated and fired the accused harasser. In subsequent counseling sessions, however, the employee reported increasing hostility from co-workers who were friends of the terminated harasser. After obtaining client authorization, DeMasters spoke directly with Human Resources about the increasing hostility and the need for intervention and training.
According to the employee, the co-workers’ behavior worsened after that and he feared for his safety. DeMasters then told several Carilion management representatives that they were mishandling the employee’s complaints.
The employee filed a sexual harassment lawsuit against Carilion. The employer settled the claim and, soon after, confronted DeMasters about his involvement. When DeMasters acknowledged that he had expressly confirmed the employee’s belief that he’d been sexually harassed, Carilion asked DeMasters why he had not taken the employer’s side, and whether he understood the magnitude of the potential company liability. The managers also told DeMasters that he had not protected Carilion’s interests and that he had left Carilion “in a compromised position.”
Two days after this meeting, Carilion fired DeMasters for failing to “perform or act in a manner that is consistent with the best interests of Carilion Clinic.” In response, DeMasters filed his own lawsuit, claiming that Carilion terminated his employment in violation of Title VII’s anti-retaliation provision. The legal issues in DeMasters’ case revolved around two issues:
* Whether an EA professional is protected from retaliation under Title VII; and
* If so, whether DeMasters engaged in protected activity necessary to invoke Title VII’s protection?
With respect to the first question, some courts have found that when an employee’s job is to communicate employee complaints, that employee cannot later claim retaliation based on the communication. Known as the “manager rule,” the idea is that, if counseling and communicating complaints are a part of a manager’s regular job duties, then essentially every activity in the normal course of a manager’s job could potentially be protected activity (and management would have no ability to discipline that manager). In DeMasters, the Fourth Circuit found that the manager rule cannot apply to Title VII retaliation cases generally, or to EA professionals specifically, because:
“Under the manager rule, the categories of employees best able to assist employees with discrimination claims – the personnel that make up employee assistance programs, Human Resources, and legal departments – would receive no protection from Title VII if they oppose discrimination targeted at the employers they are duty bound to protect.”
DeMasters, 796 F.3d at 423. The Court also found that DeMasters’ conduct was protected activity such that he was deserving of protection against retaliation. In addition to the Fourth Circuit, EA professionals should also be protected from retaliation if they advocate for a harassed client in the following jurisdictions:
Second Circuit (Vermont, New York and Connecticut)); Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee); Eastern District of Wisconsin; and the Northern District of Illinois.
However, other courts have not shared the same findings. For example, in Weeks v. Kansas, 503 Fed. Appx. 781 (11th Cir. 2015); cert. denied, 568 U.S. 1143 (2013), the manager rule barred the claim of an in-house attorney who reported discrimination and advised her employer to take it seriously. Accordingly, EA professionals in some jurisdictions may not have legal protection from retaliation should they be disciplined or terminated for having advocated for a client victim of sexual harassment. These jurisdictions include:
Tenth Circuit (Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma); District of South Carolina; Western District North Carolina; and the District of Columbia.
Please note: These lists may not be all inclusive and the law is subject to change. Therefore, EA professionals are urged to seek counsel with knowledge of your local employment law.
When Your Client is the Accused
Cooperate. Be honest. Do not retaliate. This is the best advice you can provide to a client who is accused of sexual harassment.
NEXT ISSUE: In the second installment of this series, we will discuss the employer’s responsibility when harassment is reported and how those responsibilities may impact an accused client.
Editor’s note: The recommendations provided in this article are for educational purposes only and are not to be construed as actual legal advice. Always consult with a local attorney.
For additional information about this topic, contact Robin Sheridan, (414) 721-0469, firstname.lastname@example.org; Richard Davis, email@example.com; or Kristen Chang, firstname.lastname@example.org.
Robin Sheridan is an attorney with Hall, Render, Killian, Heath & Lyman, PC. the largest health care-focused law firm in the country. Visit the Hall Render Blog at http://blogs.hallrender.com for more information on topics related to health care law.