Bent Ericksen and Tim Twigg
An employee was terminated after two months with the practice. Several of the female staff members had complained that she had touched them inappropriately and had been "coming on" to them in a sexual manner. The doctor investigated and concluded that their complaints were truthful. He then warned the offending employee that her behavior had to stop. When the complaints continued, he let the employee go. She then filed a complaint alleging she was terminated due to her sexual orientation.
Considerations
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin, and some state laws or city ordinances specifically provide protection for gay and lesbian employees, as well as sexual orientation.
These laws are in place to protect employees in the workplace, and set up what is commonly referred to as "protected classes." The types of charges that can arise under these laws include sexual harassment, retaliation, discriminatory demotion or firing, or other adverse treatment. Specifically, in the area of sexual harassment, unwelcome sexual advances, a request for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment and are not limited to members of the opposite sex.
Employers often feel caught between a rock and a hard place in situations like this. If the doctor had not acted upon the complaints, he could have been sued by the complaining staff members for violations of Title VII. Yet, to take action — if not done properly — can result in labor board complaints or lawsuits coming from the dismissed employee.
To complicate matters, the complaining employees no longer work for the doctor and are now less likely to want to become involved and may refuse to testify on the doctor's behalf. Most importantly, the doctor did not have a paper trail of the complaints made regarding the dismissed employee's behavior, which was the real cause of her dismissal—nor did he document the resulting investigation.
Solution
Be prepared to take notes detailing all aspects of the complaint and the investigation. The notes should cover all aspects of who, what, when, and where.
Step 1: Identify: Determine the issue, the people involved, and the nature of the complaint. Is it related to sex, race, religion, discrimination, or any other protected class?
Step 2: Action: Identify what policies or laws have been violated. Check to see if there is a history of prior complaints. Decide who is going to be interviewed and in what order. Determine what action you need to take prior to the investigation, such as moving the accused to another position or placing this individual on a leave of absence. Inform the employee that you will investigate and that the information will be kept confidential. You should also tell the offending employee that he or she will be informed of the results of the investigation at the appropriate time.
Step 3: Investigate: If you, the employer, are the accused, seek legal counsel from an attorney who specializes in employment law. If you are not the accused, then the investigation can be conduced by an HR professional, trained consultant, or you. If you decide to conduct the internal investigation, you would typically want to speak with the complainants first and then the accused, followed by any witnesses and anyone else either party thinks should be interviewed. Take detailed notes during the interview. Then, prepare a summary of the findings, attach any relevant documents and develop a recommended course of disciplinary action.
Step 4: Discipline: If the complaint is found valid, decide what type of discipline is appropriate.
Step 5: Report: If the investigation shows that the charge is unfounded, report this to the person being investigated. If the complaint is found valid, inform him or her of the action you plan to take to remedy the situation.
Step 6: Follow-up: Check periodically with the employee to assure that the disciplinary action is serving its purpose. If termination was involved, ask if any further harassment is taking place.
Although the doctor took the correct approach, his failure to have good documentation meant he could not prove the terminated employee was let go because of her work-related behavior rather than her sexual orientation.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For over 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company's quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.
