Case study: harassment

Bent Ericksen & Tim Twigg

A doctor was charged with sexual harassment. Since the attorney fees would have been significantly greater if he had contested the charge, the doctor chose what he perceived to be the least expensive way out: he settled out of court for $40,000.

Why did this doctor settle? Simply put, because the necessary preventive steps hadn't been taken.

Cases of sexual harassment against dentists are becoming more common. Ironically, many stem from disgruntled employees who had received unfavorable performance reviews, did not get the raise they wanted, felt unfairly discharged, or were unhappy with a decision the doctor made.

Harassment on the basis of sex is a violation of Sec. 703 of Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

1 Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,

2 Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

3 Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Prevention is the most effective tool to eliminate these claims.

1. Recognize that sexual harassment is a significant personnel-related risk.

2. Having a well-written sexual harassment policy is critical. Three years ago, the U.S. Supreme Court held that an employer can avoid strict liability for sexual harassment under Title VII of the Civil Rights Act of 1964 if "the employee failed to make a complaint under the company's policy or otherwise failed to avoid harm." A well-written sexual harassment policy should: • State that sexual harassment will not be tolerated.
• Define harassment very, very clearly.
• Encourage employees to complain about sexual harassment. Assure employees that complaint will be treated in a confidential manner.
• Inform staff that appropriate disciplinary action — which may include discharge — will be taken against any offenders.
• Emphasize that a workplace free of sexual harassment promotes good employee relations.
• Outline reporting channels and methods.
• Insist that incidents be reported to the employer or a designated person immediately.

3. Hold a staff meeting and distribute a copy of your policy. Discuss the written policy and have all employees sign an agreement stating they have read and understand your policy. Failure to train employees about sexual harassment is a violation of federal law.

4. As a practical matter, whenever possible, avoid being alone behind closed doors or in the practice with an employee, particularly of the opposite sex.

5. Do not condone risqué language or jokes within the office, post sexually-oriented cartoons or calendars, or have unnecessary physical contact.

6. Post and/or make available EEOC-suggested or state-required "Harassment In Employment" posters or pamphlets in a conspicuous place on the premises.

7. Investigate all claims of sexual harassment immediately. Take claims seriously and act promptly. Do not assume that a complaint is frivolous or the employee is "too sensitive," since sexual harassment is in the perception of the person experiencing it. If need be, separate the parties to ensure no exacerbation takes place.

8. Following a proper investigation; any sanctions should fit the offense. Regardless of how unpleasant it may be, a lack of discipline on your part essentially sets a precedent of condoning harassment.

9. Keep accurate records and detailed notes of all pertinent details concerning the nature of any complaint, the names of the parties involved, the details of the investigation, and the final outcome. Keep the complainant informed during the investigation and explain what disciplinary action, if any, you have taken. Follow through after the investigation and periodically check in with the employee to make sure that all harassment has stopped and that no form of retaliation has taken place.

10. Designate another individual to intervene in case the allegations involve you.