When Doctors Harass Patients: The Law Against Discrimination Goes Further Than You Think
The New Jersey Law Against Discrimination (LAD) protects individuals from harassment and discrimination in an employment setting, but it does more. LAD also protects individuals from harassment and discrimination in the provision of public accommodations. Thus, a patient in a hospital who is sexually harassed by a doctor can pursue an LAD claim against the hospital just as an employee can pursue a sexual harassment claim against his/her employer.
Although LAD is widely thought of as an employment discrimination law, the statute protects the citizens of New Jersey in a much broader context:
All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place or public accommodation, publicly assisted housing accommodations, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.1
Under LAD, a hospital is "a place of public accommodation,"2 and "[i]t shall be unlawful discrimination ... [f]or any owner, ... agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof, ... on account of the ... sex ... of such person... 3. Thus, under LAD, a plaintiff states a cause of action against a hospital if she can establish that she was discriminated against on the basis of her sex during the course of being furnished the accommodations (services) of the hospital.
Sexual harassment is a form of sex discrimination in violation of LAD. There are two types of sexual harassment: quid pro quo and hostile environment. In the majority of hostile environment sexual harassment cases, "the harassing conduct takes the form of unwelcome sexual touchings and comments."4 In order to state a cause of action for hostile work environment sexual harassment, the plaintiff must establish that the conduct (1) would not have occurred but for her gender; (2) was severe or pervasive enough to make a (3) reasonable woman believe that (4) her environment is hostile, abusive, intimidating or offensive. Under the accommodations language of LAD it is equally possible to state a sexual harassment hostile accommodations environment cause of action. In fact, the same standard could be applied.
The federal court in New Jersey has found discrimination in violation of LAD in the health care field in the case of a dental practice that refused to treat a patient who was HIV positive.5 Other courts have found hostile housing environment sexual harassment where a tenant was subjected to repeated comments of an offensive sexual nature made by the owner of the building.6 Based on these two cases, it is clear that a patient can set forth a prima facie case of discrimination under LAD if she establishes that the hospital, through its agents (doctors) sexually discriminated against her in the furnishing of the privileges and accommodations available to patients at the hospital by creating a sexually hostile hospital environment. While this theory is not yet commonly accepted by the trial courts of New Jersey, the law is not a static thing and novel causes of action are always forthcoming. A patient knows when she has been sexually harassed by her doctor and it is the lawyer's job to teach the courts to know it too.