Regency Beauty Institute (“Regency”) charges students an annual tuition of approximately $20,000.00.  Regency has eighty-nine campuses across the country and is the second largest cosmetology education business in the United States.  

Regency employs individuals in its admissions department to prospect for and recruit new students.  Admissions employees make telephone calls and follow up calls to prospective customers in an attempt to convert them into Regency students; they recruit new students by calling through lists of prospects, giving a set speech about Regency to prospects who answer their calls, and attempting to arrange campus visits for interested prospects. Regency sets rigorous recruitment goals and monitors almost every moment of admissions employees’ time to ensure satisfaction of those goals. In essence, the admissions department is Regency’s sales department.

Madia Law settled a shocking case of sexual harassment and workplace intimidation that eventually led to the Plaintiff developing Post Traumatic Stress Disorder.

A female employee, “Mary”, was sexually harassed and intimidated by her male supervisor. Despite repeated attempts by Mary and others to report the supervisor’s behavior, he remained employed for nearly two years because a department manager repeatedly refused to take any action.  The supervisor’s constant harassment and terrorizing of Mary had a devastating effect on her life.

On Mary’s behalf, Madia Law sued the employer approximately one year ago, charging violations of the Minnesota Human Rights Act and common law infliction of emotional distress.  The suit has now settled for $125,000.  A summary of the events leading to the case follows: 

In Spring 2009, Mary started with Defendant as an administrative office worker.  Throughout her employment with Defendant, she was an exemplary employee.  Defendant recognized her hard work and achievements through positive performance reviews and pay increases.

In Summer 2009, Mary was trained for a new position.  Almost immediately, she was subjected to a sexually hostile and abusive work environment by her supervisor, who would say things such as “If you are cold, come sit on my lap . . . [I] will warm you up.”  He would ask Mary: “Are your nipples cold?  Let me see if they are cold.”

After one meeting, the supervisor made comments in the presence of Mary about how another female employee “probably has a gray squirrel” and pondered as to whether “she shaves it.”  Then, the supervisor turned to Mary and asked her if she too had a “gray squirrel.”

In early 2010, Mary confronted the supervisor about his conduct for the third time.  She asked him to stop and told him that she felt sexually harassed.  Rather than apologize or have a meaningful conversation with Mary, the supervisor threatened that if anyone “snitches” on him he would “get even.”

In Spring 2010, Mary reported the supervisor’s conduct to his superiors.  Although a female superior brought brought the problem to a more senior male manager several times, Mary did not receive a follow-up from the initial reports.  Mary continued to report the supervisor’s harassment and abuse on a weekly basis, and was repeatedly ignored.

In Summer 2010, Defendant hired several female temporary employees.  The supervisor began making daily comments either directly to or in the presence of Plaintiff and others about one of the temporary employees, referring to her having a, “nice ass” and a “camel toe”.  The supervisor also increased the frequency of sexual comments directed at Mary during this time—often inquiring about Mary’s “gray squirrel” and openly talking about rape with Mary and other female employees.

In January 2011, the supervisor told Mary and another female employee that his wife “loved it” when he would “wear women’s nylons over his face and pretend to be a rapist.”  Mary was extremely frightened and intimidated by the supervisor’s threats.

Soon after he made threats to use his AK-47 on his co-workers, Mary approached a superior once again.  This time, the department manager, upon hearing about Mary’s concerns, met with her for a discussion.  Nevertheless, the manager again brushed off Mary’s concerns and did nothing to look into the problem or to discipline the supervisor in any way.  He told Mary that she was “tough” and could “handle it.”

In early 2011, the supervisor opened a picture on his computer of a what he called a “sexy” woman crouched under a desk and performing oral sex on her boss.  The supervisor showed the picture to Mary and asked her if she would like a “new job,” while he gyrated his hips to and fro.  Mary was extremely upset and intimidated by the supervisor’s question and highly offended by the picture.

In Spring 2011, the supervisor repeatedly watched a video with sexually explicit images and vulgar language on his computer while Mary and another female employee were in the office with him.  The women were training on the next computer and could not even hear each other speak due to the loud volume on the video.  One of the employees demanded that the supervisor shut off the video immediately, but he did not comply.

As a result of the conduct, Mary suffered extreme intimidation at work and great emotional and mental distress, including Post Traumatic Stress Disorder, insomnia, tremors, and nightmares.  Mary was forced into medical leave and has required substantial treatment to address the trauma caused by the sexual harassment and hostile work environment.

After a year of litigation, Mary’s supervisor settled the case for an amount over four times Mary’s annual wages.

It’s a tactic long used by defendants in both civil and criminal cases.  From charges of rape to sexual harassment, men take the stand and point the finger at their female victims.  Claiming that they “asked for it,” or that they “wanted it,” such men have often found sympathetic audiences in judges and juries.

In three recent and sensational examples (one in Iowa, one in Minnesota, and one in Arizona), Defendants’ attempts to use the “blame her defense” have yielded strikingly different results.  While the cases are very different, both legally and factually, they serve as fascinating examples of a kind of defense that, despite such protections as Title VII and the Minnesota Human Rights Act, female victims must continue to grapple with.

Nelson v. Knight

Melissa Nelson’s former employer, Dr. James Knight, successfully argued that Nelson was just too “irresistible” for continued employment in his dental office.  Knight, who employed Nelson for over a decade, admitted that she was the best dental assistant he’s ever had.  Despite that admission and Nelson’s long-time dedication, when Knight’s wife became concerned that he was a bit too fond of his favorite assistant, Nelson was fired.

According to the decision, Knight told Nelson that she needed to stop turning him on, telling her that, “if she saw his pants bulging, she would know her clothing was too revealing.”  Nelson, who wore standard medical scrubs, was happily married and was shocked by her boss’ comments.  Although Nelson (1) stated (unequivocally) that she wasn’t interested in a relationship with Knight, (2) flatly ignored his attempts to engage in overtly sexual conversation, and (3) had her husband attempt to reason with him, Knight still (somehow) determined that it would be too difficult not to start an affair with her.  Accordingly, after Knight and his wife purportedly “agonized” over the decision, Knight consulted with his pastor, who recommended Nelson’s termination.

Nelson, who now works as a waitress, filed suit against Knight after her and her husband’s attempts to rationalize with Knight proved unsuccessful.  Nelson’s lawsuit didn’t allege sexual harassment; rather, she argued that her termination was the result of gender discrimination.   Like Minnesota, the State of Iowa prohibits discrimination in the workplace on the basis of sex/gender.  Wrongful termination as a result of such discrimination can result in expensive lawsuits for employers found to be engaging in such behavior.

The fundamental question before the court in this case was whether workplace discrimination due to “attraction” is functionally equivalent to discrimination on the basis of sex.  The seven men on Iowa’s highest court decided that, at least in Iowa, it’s not.  Citing several other courts (including a Kansas court that, “cannot agree with Plaintiff’s expansive definition of discrimination based on sex”), the justices concluded that an employee can be fired even though she hasn’t engaged in any flirtatious behavior and didn’t purposefully contribute to the “irresistible” attraction her boss has for her.

Nelson’s attorney, Paige Fiedler, told the Daily Mail that the Iowa Supreme Court, “sent a message to Iowa women that they don’t think men can be held responsible for their sexual desires and that Iowa women are the ones who have to monitor and control their bosses’ sexual desires. If they get out of hand, then the women can be legally fired for it.”

In RE Petition for Disciplinary Action against Clark Calvin Griffith, II

The Minnesota Office of Lawyers Professional Responsibility recently petitioned the Minnesota Supreme Court to discipline 70-year-old attorney and adjunct law professor Clark Griffith after Griffith allegedly forced a female law student to touch his bare penis on Victoria Street in St. Paul during broad daylight.

Griffith’s actions also resulted in criminal charges of indecent exposure.  Although he pled guilty to the charges, Griffith hedged, saying that he was only pleading guilty because he thought the weight of the evidence against him was strong enough to result in conviction, not that he actually did anything wrong.  (See: Alford plea)

Then, before and during his sentencing hearing, Clark argued that he was the victim.  From the St. Paul Pioneer Press:

She sat in the front row in his class, directly in his line of sight. She always dressed nicely. She lingered after class and sought his advice on career matters.

Those were among the statements former adjunct William Mitchell College of Law professor Clark Calvin Griffith, 70, gave to a probation officer, ostensibly describing how a 24-year-old student victimized him. Griffith was charged with indecent exposure after he unzipped his pants on a busy St. Paul street in front of the student, then kissed her.

“The defendant stated that he was the victim of a sexual assault and described this experience as very traumatizing,” Ramsey County District Judge George Stephenson said, quoting a presentencing report during a sentencing hearing Thursday, July 26.

Griffith also told the probation officer who prepared the report that “women want sexual power over men,” said St. Paul prosecutor Steve Christie.

In this case, the judge wasn’t having it.  The article went on to say that the judge “scoffed” at that account:

“Are you kidding me?” the judge said. “Come on, Mr. Griffith.”  When Griffith tried to interrupt, [the judge] said, “Don’t say another word, because you’re just pissing me off.”

The Office of Lawyers Professional Responsibility has not yet announced whether the Minnesota Supreme Court has made a decision regarding professional discipline of Griffith, although it has reported that William Mitchell College of Law terminated Griffith’s employment within days of the student’s report.

Arizona v. Evans

In a slightly different case, the judge in Arizona v. Evans didn’t wait for the criminal defendant to blame the victim.  She did it herself.

Gary Evans was a highway patrolman who sexually assaulted a woman at a bar in Flagstaff, Arizona.  At his sentencing hearing, the judge told the victim that the officer wouldn’t have stuck his hand up her skirt and groped her genitals if she hadn’t gone to the bar that night.

Madia Law, representing a woman who worked at a Twin Cities technology company, has initiated a sex discrimination lawsuit against the company pursuant to the Minnesota Human Rights Act.  Just prior to the Plaintiff’s hire, the company (which has been in business for decades) employed dozens of men and not a single woman.

In Fall 2012, the Plaintiff commenced employment as a department manager. Around the same time, the Defendant hired two other women. During her interview, a senior-level executive told the Plaintiff that although he was willing to hire her, the company had bad past experiences with women and “doesn’t like to hire” them.  Shortly after starting, the Plaintiff was told that she would have to “prove” herself by, “doing better than any man” if she wanted to keep her job; she was also repeatedly told that she was, “at a disadvantage” because she was a woman.

A few weeks later, the executive that interviewed the Plaintiff had a meeting with her to discuss the “politics and culture” of the company—which he said were, “very conservative and religious.”  In that meeting, the executive told the Plaintiff that he needed to “prepare” her for the return of the CEO, who was on a religious pilgrimage in a foreign country and wouldn’t “know what to do” when he returned and found, “all these women.”  The executive went on to explain that the CEO, “believes that women do not belong in the workplace.”

Throughout her employment with the company, the Plaintiff was continually treated in a hostile and discriminatory manner. From not being allowed to have food at her desk, to having her salary disclosed to coworkers, to being constantly over scrutinized and badgered, the Plaintiff was continuously treated differently than men.

Despite trying to ignore the problem and logging 50-60 hours a week in order to meet heightened expectations, after several months of such treatment, the Plaintiff complained to human resources.  A week and a half later, the Plaintiff was told that her job would be outsourced and that she was, “no longer needed.”

The lawsuit, which has not yet been filed in Minnesota state district court, was served on the Defendant on Friday, January 25.  The suit alleges disparate treatment, hostile work environment, and retaliatory discharge.

See also:
Lawsuit Alleges Old Boys’ Club in Young Industry

The Twin Cities leads the nation in racial inequality in the workplace.  A study released last month by the Institute on Metropolitan Opportunity at the University of Minnesota Law School suggests one potential contributory reason for the inequity between black and white employees in Minneapolis and St. Paul: segregation that begins in school.

In the late 1980′s, Minnesota began allowing for open enrollment between school districts.  Provided that parents provide for transportation if they elect to put their children in a school outside of their home district, they may send their children to whatever Minnesota public school district they see fit.  The study results suggest, however, that racial discrimination may be one reason parents are choosing to send their children’s to different districts.  According to the Star Tribune:

STUDY’S MAIN FINDINGS:

• The three large city districts of Minneapolis, St. Paul and St. Cloud each lose substantial numbers of students under open enrollment. Loss of white students to nearby districts represents a large majority of each district’s net losses.

• Suburban districts losing the most students to open enrollment include a group of diverse inner- and middle-suburban districts which lose substantial numbers of students.

• Districts gaining the most students from open enrollment are predominantly white districts that receive students from more diverse districts.

and,

The key finding: white students who choose to open enroll often leave diverse districts to attend schools with a higher percentage of white students.

Not only is white-flight a problem at inner city schools, but attempts to encourage racial integration among suburban districts is being met with fierce opposition. In September 2011, Superintendent Melissa Krull was forced out of the Eden Prairie School District when parents became enraged at her efforts to ensure racial integration.

The fact that there is also an achievement gap between black and white students in Minnesota and that the Twin Cities leads the nation in racial inequality in the workplace means the study’s results are especially concerning.  According to the Minnesota State Demographic Center, “By 2035, 44 percent of Hennepin County residents and 48 percent of Ramsey County residents will be people of color. In the suburbs, the non-white population will double by that time.”  If the Twin Cities is unable to address the matter, we may be headed in the direction of Milwaukee - the most segregated city in America.

According to one study, the employment discrimination situation in Milwaukee is grim:

“A young, white, male high school graduate with a felony conviction applies in person for entry level jobs as a driver, a dishwasher, a laborer, warehouse worker and production worker that are advertised in the newspaper and admits to employers that he served 18 months in prison for possession of cocaine with intent to sell.

A young black man with similar education, work history and style of presentation, but with no criminal record, applies for the same jobs.

Who do you think is more likely to be called back?

If you picked the white man with the felony conviction, you guessed right.

This study offers evidence that discrimination remains a major factor in the economic lives of black men, and highlights the fear and misunderstanding of black males that permeate the local job market.

Devah Pager, a sociologist at Northwestern University in Evanston, Ill., sent equally matched pairs of testers – two black and two white – to apply for low-skilled jobs at 350 places of employment in the Milwaukee area and found that white ex-offenders were more likely to be called back for an interview than black applicants who had no criminal record.

Students test employers

In this detailed study, bright, articulate, college students posed as job applicants. Even though the results were strikingly close, black men without criminal records were called back only 14% of the time, while whites with criminal records were called back 17% of the time.

The study, titled “The Mark of a Criminal Record,” was conducted in Milwaukee between June and December 2001, and the results were released last month.

“It shows there’s a great deal of work that has to be done in the education of employers and working on attitudes,” says Julia Taylor, president of the Greater Milwaukee Committee. “This type of racial disparity in employment practices really impacts us as a region. It impacts our work force, and it really impacts how the inner-city moves forward.”

Pager chose Milwaukee for her experiment because it is representative of most large metropolitan areas in its size, racial demographics and industrial base, she says.

The study’s findings would surprise few African-Americans in this city, who know from experience that this kind of discrimination exists in the job market. Research shows that white Americans, however, have been led to think that direct, racial discrimination of this nature has become less of a problem in our society.”

The combination of the current employment inequities with school district white-flight and the expected demographic changes in the Twin Cities over the next 20 years suggests that racial discrimination by employers may not be going anywhere, and may even suggest a potential increase in race discrimination cases pursuant to Minnesota and federal employment laws.

In disparate treatment cases, employers are found to be liable for racial discrimination if the employer treats employees in similar situations differently based upon race. As an example, if an employer fires John for being late but does not fire Jane for being late, and the only reason for the difference in treatment is because of John’s race, that employer will be held liable for the discrimination. In disparate treatment cases, employment lawyers seek to highlight facts that show obvious racial bias, prejudice, etc. Such facts include things such as a supervisor’s use of derogatory slurs, or something as subtle as a supervisor consistently ignoring employees of a specific race in the break-room.

In disparate impact cases, employers are found to be liable for racial discrimination if the pattern and practice of the employer is such that there is an adverse and differing impact to employees of different races. So, even if there is nothing that blatantly suggests racial discrimination, an employer can be held liable if there is a disproportionate difference in how their employees are affected. Discrimination in hiring practices is one scenario that is more likely to be a disparate impact case than a disparate treatment case. Although an employer may appear to be facially neutral in its hiring practice, even subconscious racism by a hiring manager, for example, can lead to a disproportionately negative impact on racial minorities; this report suggests that there may be a prevalence of such issues in Twin Cities workplaces.

It is imperative that Minnesota families, employees, and educators recognize that racial discrimination, whether intentional or not, is still alive and well in our state.  Schools and businesses must take active steps to prevent such discrimination in their practices; those that don’t may find themselves on the defending side of discrimination lawsuits in state or federal court.

Madia Law, working with Wolf Haldenstein Adler Freeman & Herz LLP, filed a class action lawsuit in the United States District Court, Southern District of New York, on behalf of all persons who purchased Hi-Crush Partners LP (“Hi-Crush”) [NYSE: HCLP] common units pursuant and/or traceable to the Prospectus (the “Class”), against Hi-Crush and certain of the Company’s officers and directors, alleging claims under Sections 11, 12, and 15 of the Securities Act of 1933.

The case name is Sesholtz v. Hi-Crush Partners LP, et al., Civil Action No. 12-8610.  A copy of the complaint filed in this action can be viewed on the Wolf Haldenstein website at www.whafh.com.

The complaint details that on August 21, 2012, Hi-Crush completed its initial public offering (“IPO”) of 12,937,500 common units representing limited partner interests in the Partnership (“Common Units”) sold at a price to the public of $17 per common unit.

The offering was described in a Form S-1 Registration Statement filed with the SEC and disseminated to investors on July 6, 2012, and it was amended on August 3, 2012 and August 7, 2012. Among other things, the Prospectus touted the existence and benefit of specific lucrative long-term contracts with large customers, including Baker Hughes Incorporated (“Baker Hughes”). It was not until after the IPO that the truth about the problems with Baker Hughes began to emerge.  On November 13, 2012, the Company issued a press release in which Hi-Crush announced that Baker Hughes had terminated its  supply agreement with Hi-Crush on September 19, 2012. As a result of the Company’s disclosure of its loss of the Baker Hughes contract, the price of Hi-Crush Common Units dropped $5.35 to close at $15.00 – a one-day decline of over 26%.

The Prospectus contained numerous false and misleading statements concerning Baker Hughes, one of Hi-Crush’s largest customers.  For instance, the Prospectus failed to inform shareholders that Baker Hughes had sought to change the material terms of its contract with the Company as early as February 2012 and was threatening to cancel its contract altogether prior to the issuance of the Prospectus.  Further, the Prospectus failed to inform shareholders that Baker Hughes began refusing to take or pay for Hi-Crush’s sand prior to the IPO and the issuance of the accompanying prospectus. The long-term contract with Baker-Hughes was unquestionably material to the success of the Company and the IPO.  Indeed, according to Hi-Crush it represented 18.2% of the Company’s revenue in 2012.

Plaintiffs seek to recover pursuant to Sections 11, 12 and 15 of the Securities Act for the material misstatements and omissions contained in the Prospectus.

If you purchased Hi-Crush common units pursuant and/or traceable to the Prospectus, you may request that the Court appoint you as lead plaintiff by January 22, 2013.  A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation.  In order to be appointed lead plaintiff, the Court must determine that the class member’s claim is typical of the claims of other class members, and that the class member will adequately represent the class.  Under certain circumstances, one or more class members may together serve as “lead plaintiff.” Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff.  You may retain Madia Law, Wolf Hadelstein, or other counsel of your choice, to serve as your counsel in this action.

If you wish to discuss this action or have any questions, please contact Madia Law.

In November 2012, Madia Law sued a Twin Cities accounting firm on behalf of a learning disabled accountant. The young accountant, who has suffered from Attention Deficit Hyperactivity Disorder (“ADHD”) since he was a child, disclosed his disability to his supervisor at the time of his first performance evaluation.

Despite being fully capable of being successful at the job, the young man wanted to be sure his supervisor knew that he thinks, learns, and works in a different way than others, particularly since he noticed a few comments on his evaluation that seemed to signal a concern with the way he processed information and executed tasks. The accountant felt that it would help everyone involved to be aware of his slight disability. But, soon after disclosing his disability and requesting slight accommodation, he was fired. 

The Americans with Disabilities Act and the Minnesota Human Rights Act both protect against discrimination based on disability. If an individual is capable of doing their job, with or without an accommodation from their employer, it is illegal for an employer or prospective employer to take adverse action against that individual.

Adults with ADHD are often afraid of disclosing their disability to their employers out of fear that they will be subject to increased scrutiny and/or adverse measures such as corrective action or termination. This is precisely what laws like the ADA and the MHRA are designed to protect. With little or no accommodation from their employers, these adults can usually be very successful in almost any industry and position. To discriminate against them violates the spirit and the letter of state and federal law.

Employers who violate these laws by acting in unfair and discriminatory ways may be required to pay damages suffered by the disabled employee, including economic harm, lost earnings and benefits, embarrassment, emotional distress, humiliation, and more.

Prior to Tuesday, six states (New York, Massachusetts, Vermont, New Hampshire, Connecticut, Iowa) and the District of Columbia had full marriage equality.

As a result of Tuesday’s historic election, three additional states will now have marriage equality as well. Those states are Maine, Maryland, and Washington. (Technically, at the time of this post, Washington’s results are still coming in, but its referendum on the matter looks almost certain to pass.)

Another result of the election is that Minnesota defeated a hurtful and divisive amendment that would’ve constitutionally banned marriage equality. Since last night’s election also gave the DFL control of the Minnesota legislature, and since Governor Dayton is pro-marriage equality, it is almost certain that, despite initial words to the contrary, Minnesota is now on the fast-track to also establishing marriage equality.

The real question is whether Minnesota’s democratically-elected government will beat the United States Supreme Court to the punch.

Since Proposition 8 passed in California in November 2008, “Don’t Ask, Don’t Tell” has been repealed, the Executive Branch stopped defending DOMA, President Obama endorsed marriage equality, and the majority of the nation’s citizens now favor marriage equality. On top of all of that, Tuesday night, four out of four states decided in favor of marriage equality via popular vote. Prior to that, marriage equality lost at the ballot box 31 successive times. The momentum shift of the last four years has truly been stunning.

On November 20, the US Supreme Court will meet to decide whether it will review several marriage cases. The cases that deal with the Defense of Marriage Act (“DOMA”) address whether the law that stops the federal government from recognizing marriage equality is constitutional; the law also prevents any state from being required to recognize the marriage equality of couples married in another state. The “Prop 8″ case deals with the constitutionality of California’s 2008 anti-marriage equality amendment.

Given the overwhelming momentum shift of the past few years, I predict that the Supreme Court will decide to review these cases. The Court will make the announcement about whether it will review these cases by November 26th. Then, sometime in June or July of next year, I predict that the Court will find both Prop 8 and the Defense of Marriage Act unconstitutional. While I predicted this in May, I suspect that the additional momentum of last night will bump the overall SCOTUS vote on these issues beyond the 5-4 prediction I’ve previously stated.

I predict that the Court will declare Proposition 8 unconstitutional by a 7-2 vote; I further predict that Anthony Kennedy will write the majority opinion, joined by Justices Ginsberg, Breyer, Sotomayor, and Kagan. I believe that Justice Kennedy will craft his opinion in such a way so as to strike down the 31 constitutional amendments and additional state laws that currently ban marriage equality across the United States; and, I suspect he’ll do so by applying heightened scrutiny to laws that discriminate based on sexual orientation. I also expect to see a concurring opinion by Justice Roberts (joined by Justice Alito) that would only strike down such state amendments in the case of California, and would only apply the rational basis test for laws addressing sexual orientation. I’m looking forward to a very entertaining dissenting opinion by Justice Scalia, joined by Justice Thomas.

I predict that the Court will find DOMA to be unconstitutional by a vote of at least 7-2. There is a much greater chance that Justices Scalia and/or Thomas would jump in on this matter, as it is fundamentally tied to issues of States’ rights. I wouldn’t be surprised to see Justice Kennedy also draft the majority opinion here, too. Depending on the level of scrutiny he applies, and depending on whether Justices Scalia and/or Thomas end up also throwing their weight against DOMA, the set of opinions for this matter could end up including a plethora of differing concurrences and/or dissents.

If these predictions pan out, the result will be marriage equality in every US state within 9 months.

A San Diego hospital and doctor have been sued by an 18-year-old intern who alleges sexual harassment, sexual battery and assault, hostile work environment, and negligence.   The plaintiff, who was only 17 at the time he began an internship at San Diego Memorial Hospital, alleges that cardiologist David Hicks sexually harassed and assaulted him and that the hospital failed to adequate address a pattern of sexual harassment at the hospital.

In Minnesota, hospitals and clinics that receive complaints of sexual harassment by doctors (either from employees or patients) have many reasons to err on the side of caution when deciding whether or not to discipline such doctors.  In addition to employment law claims, hospitals may be subject to a tort action for negligent retention of the doctor if the same alleged harasser goes on to sexually harass and/or assault another employee or patient.  Further, there are significant protections under Minnesota law for healthcare employers who take such preventative actions as to remove the doctor’s employment and/or privileges to practice. 

Hospitals and clinics that fail to properly discipline doctors who sexually harass employees may be the subject of a lawsuit under Title VII and/or the Minnesota Human Rights Act.  In addition to employment law claims, hospitals who receive multiple reports of sexual harassment against the same doctor would do well to take immediate action; the Minnesota Supreme Court recognized in Larson v. Wasemiller, 738 N.W.2d 300 (Minn. 2007) that a private tort action exists for the negligent credentialing of a doctor.  Thus, in cases where there are multiple complaints of sexual harassment by a doctor, hospitals would do well to consider removing the doctor or else be subject to a negligent credentialing claim should the doctor go on to harass or sexually assault an employee or patient.

Federal courts have also held that hospitals may be subject to hostile work environment claims even where the the harassing doctor is technically not a hospital employee. See Santos v. Puerto Rico Children’s Hosp., (“[A] plaintiff’s employer may indeed be liable for a non-employee’s acts of harassment under Title VII if it knows or should have known of the conduct and fails to take immediate and appropriate action”).

Hospitals and clinics might argue that the risk of breach of contract claims by doctors prevents them from taking action on first-time reports of sexual harassment, but Minnesota law affords broad protections for healthcare providers that subject such doctors to professional review.  Pursuant to Minnesota Statute 145.63, and also pursuant to Title 42 U.S.C. § 11101-52, (the “Health Care Quality Improvement Act of 1986”), the Minnesota Supreme Court has held that hospitals and members of its professional review boards are immune from damages in physician actions challenging the revocation of their medical privileges, so long as they were acting in good faith in accordance with their duties and there was no malice toward the physician affected. Doctor’s Med. Clinic v. City of Jackson, 581 N.W.2d 30 (Minn. 1998)(relying on both M.S.A § 145.63 and Title 42 U.S.C. § 11101-52).

The Minnesota statute in particular seems to grant such protection even if the hospital’s professional review board delegates its authority to others, such as human resources professionals.

The protections from liability provided in this subdivision shall also apply to the governing body of the review organization and shall not be waived as a result of referral of a matter from the review organization to the governing body or consideration by the governing body of decisions, recommendations, or documentation of the review organization.

M.S.A. § 145.63 Subd. 1.

Federal courts have interpreted the HCQIA to grant broad discretion to a medical center board regarding its staff-privilege decisions. Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1337 (11th. Cir.1994).  Specifically under the Health Care Quality Improvement Act (“HCQIA”), a healthcare entity is immune if their review body meets all of the necessary standards. Title 42 U.S.C.A. § 11111(a).  The standards include: 1) “the reasonable belief that the action was in furtherance of quality health care, 2) the action is implemented “after a reasonable effort to obtain the facts of the matter,” 3) the action is taken “after adequate notice and hearing procedures,” and 4) there is a reasonable belief that the action is warranted based on the facts. 42 U.S.C.A. § 11112(a). “A professional review action shall be presumed to have met the preceding standards … unless the presumption is rebutted by a preponderance of the evidence.” Id; see also: Welchlin v. Fairmont Med Ctr., 2011 WL 2983154 (Minn. App. 2011).