By Vanessa Salvia
Rita Turley is the practice administrator for Turley Dental Care, a practice that grew over 33 years from a solo practice to one with 11 doctors, 19 chairs and two locations in Billings, Montana. With her background as vice president of a large hospital system, Turley felt well-educated regarding sexual harassment in the healthcare workplace. But after working in the dental field, she realized many workplaces were not as well-educated as they needed to be.
“What I found is that dental practices are usually one- or two-doc shops and are pretty naïve about the definition and understanding of sexual harassment,” she says.
This issue has received a tremendous amount of attention recently due to multiple high-profile cases of sexual harassment. No matter how large or small your workplace is, it’s important to understand what harassment is and how to prevent it. This knowledge is not only good for your employees, it can help protect the practice from costly lawsuits.
What is sexual harassment?
Sexual harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964. There are three elements to an action of sexual harassment. One is that the action must be sexual in nature. Two, it must be unwelcome. Third, it must meet the U.S. Equal Employment Opportunity Commission (EEOC) definition of either “quid pro quo” and creating a “hostile environment.” Quid pro quo harassment exists when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.”
Hostile environment harassment “must be severe or pervasive enough to alter the conditions of the victim’s employment and create an abusive working environment.” Although quid pro quo and hostile environment harassment are considered distinct claims, the line between the two is not always clear. In addition, the two forms of harassment often occur together. The reasonable person standard is used for evaluating harassment; that is, the harasser’s conduct is considered from the objective standpoint of a
Richard Birdsall, an attorney, investigator and workplace consultant with The Growth Company in Anchorage, Alaska, says that generally, a one-time incident is not suggestive of harassment. “It’s a continuing of behavior that makes the workplace intolerable and uncomfortable. Then the courts look at the behavior and say, ‘Yes, that behavior is really inappropriate and yes, that would make a hostile workplace.’”
However, it depends somewhat upon the severity of the incident. “You can have one serious incident that will qualify as a hostile work environment,” he says. “Placing an employee in a position of fear and trepidation to report to work because of a reasonable fear they’re going to get cornered can turn into a hostile work environment immediately.”
Sometimes the pattern of behavior is not apparent at first. Birdsall gives the example of a co-worker who makes a sexual comment or innuendo that is not well-received. If the commenter doesn’t realize it’s not well-received, the next day they may make another similar comment. “Then it becomes a pattern, making it miserable to work there,” he says.
Most sexual harassers are male, but harassment can come from and be directed toward people of any gender. It can be committed by supervisors or subordinates, patients or staff, or even vendors.
No matter who is committing the offense, the employer has an obligation to provide a harassment-free workplace. If inappropriate behavior is occurring, the company has a duty to make changes because they’re the one with control over the workplace.
How does that work if a customer is the harasser? “Let’s say a patient likes a particular dental assistant and makes comments,” says Bryan Peterson, vice president of Associated Employers in Billings, Montana. “Option one is keep the customer and get them a different dental assistant. [O]ption two is to tell the patient, ‘Sorry, you’re no longer a customer here.’”
What are the boundaries?
In response to all of the recent media attention, Birdsall says people are afraid of doing the things they normally would do in the workplace, such as hugging their favorite patients or comforting a distressed employee. The key is to know if the behavior is unwelcome.
“The co-worker or whoever is getting hugged… if they are uncomfortable with that behavior, and they show it verbally or non-verbally, you have to respect that,” he says. “That’s why training and knowing where the boundaries are is so important.”
Birdsall understands that many romances begin in the workplace, and that many happily married couples found each other on opposite sides of the dental chair. However, some offices may discourage workplace dating because it can go sideways and evolve into allegations of sexual harassment. There can be other disruptive consequences of this, such as giving the appearance of favoritism.
Turley’s practice does not allow any kind of non-clinical touching between the doctors and staff or patients. “Doctors give verbal compliments, but they don’t give a hug,” she says. “We try to be very forthright and keep all relationships and contact on a professional level. It is up to us to be very professional in what we do.”
As a consultant, Birdsall doesn’t want to force small practices to disallow what many view as normal, friendly behavior. “People in the medical world enjoy social interactions because caring for people is what they do,” he says. “It’s in their DNA. This can include friendly hugs, but the way to deal with it is with training to understand the boundaries. The interaction decisions can almost be person-to-person. Again, the key is if the behavior is unwelcome, then the employees’ wishes are respected.”
Training and policies
Although most people know what harassment feels like when they’re on the receiving end, they may not realize their behavior toward others is perceived as inappropriate. That’s why sexual harassment training is common in many companies.
“One of the things that I did when I became involved in the office management in 2016 was to create an educational program on sexual harassment in the workplace,” says Turley. “We review it with everyone at a staff meeting on an annual basis. It’s been very helpful for our staff and doctors.” The program is about 45 minutes and covers very specific policies and expectations.
If you can’t create your own sexual harassment educational program, hire workplace consultants to provide one. “We’re seeing an uptick in requests for preventative training,” Peterson says. “With everything going on nationally, people are saying, ‘Let’s get ahead of this.’ But in addition to training there needs to be some sort of policy.”
“The safest way to handle sexual harassment or behavioral harassment is to just avoid it, so we really apply that to what we expect in our office code of conduct,” Turley says. The staff has a dress code that requires their uniform tops to cover them up to the collarbone. “We find that the millennials don’t have the same concept of what’s appropriate and not appropriate, and we had to institute a dress code not only in the neckline but in the tightness of the entire uniform.”
One of the Turley practice locations is in a shopping area where patients may come dressed in shorts, low-cut tops, halter tops, even swimsuits. To prevent allegations of inappropriate behavior by dentists, the hygienists are instructed to put a bib over the person’s top right away or the dentists won’t walk into the room. Dentists are never alone with patients.
The importance of reporting
Key to preventing or dealing with sexual harassment is encouraging reporting of incidents. “If someone reports it or you can observe it going on and you don’t deal with it, the owner of the business can be liable if that behavior is allowed to continue,” says Peterson.
The Supreme Court says that reporting sexual harassment is a requirement before the victim can sue. The victim has to give the employer a chance to correct the situation. The employer also has the obligation to make reporting easy and free of fear of retaliation.
If someone reports sexual harassment, the owner or person in charge of human resources has an obligation to respond. Saying something like, “That doesn’t sound very serious,” or not doing anything at all is not an appropriate response.
“If someone comes to you [as a supervisor] and says, ‘Hey, I just want someone to know but don’t do anything about it,’ and you honor that request to keep it as confidential as possible, that could be a problem,” says Birdsall. “You may have just been told something you have a legal duty to address. Ignoring reports or observations of possible sexual harassment is not an option, so there can be no secrets here.”
Rebecca Boartfield, a human resources consultant with Bent Ericksen & Associates in Eugene, Oregon, understands that small practices often don’t have an HR manager. “Small dental practices may have an office manager that wears the hat of HR but doesn’t have the training of HR,” she says, “and if there’s no office manager it’s hard to report it to the person who’s doing the harassment.” Even in offices that have an HR manager, that person is in the same power structure and often under the same supervisors as the employees who are experiencing the harassment. It can make managing a tricky situation even more difficult.
In cases where an in-office HR manager is not accessible or doesn’t know how to respond, Boartfield recommends hiring an external third party that is willing to listen to and manage any complaints. “A practice could look to a consultant, an accountant or an employee assistance program,” she explains. “There are any number of external third parties who could be willing to take that complaint and be unbiased.”
If someone has already reported harassment at work and the employer won’t take action, filing with the EEOC is the next step. States have different time frames—from 180 to 300 days from the date of discrimination—to file. Employees are protected from retaliation if they file a discrimination charge with the EEOC. By educating yourself on the basics of sexual harassment, and implementing some basic training and policies in the office, there’s a good chance that claims can be avoided or will never get that far.