Imagine talking to colleagues during a lunch break and telling an off-color joke. It might seem harmless to you, but it might be offensive to somebody else. Respect for people's boundaries, and understanding what constitutes sexual harassment can help avoid costly litigation and create a work culture that addresses everyone's comfort level.
There are steps a dental practice could take to avoid liability; to avoid legal responsibility for that supervisor’s actions.
Pick any day of the week, log in to CNN online or any other news source, and you’re likely to find a story about alleged sexual harassment. It’s everywhere. And the proliferation of these allegations begs the question, is sexual harassment more prevalent today, or are more people less tolerant and coming forward than they did 15 or 20 years ago?
Stephanie Davis, Esq., S.P.H.R., president of Employment Practices Solutions, a human resources and employment law consulting firm, thinks it’s the latter. People are feeling empowered to speak up, and the result has been a tidal wave of collective empowerment.
“I definitely don’t think it happened any less in the past,” Davis says. “It was just more accepted as something you had to deal with.”
But not anymore.
Davis explains that there are essentially two types of harassment under the law: quid pro quo harassment, and hostile work environment. The former Latin meaning a favor for a favor, and is the “most serious type of harassment.” So where sexual harassment is concerned, it means a sexual or romantic favor in exchange for a job benefit.
“By definition, quid pro quo harassment involves somebody with power, and it involves sex,” Davis explains. “You have sex with me, and I’ll put in a good word for you for that promotion. It has to be somebody who has power over you.”
If a manager or supervisor, someone with power over another individual, engages in quid pro quo harassment and the company is sued, the company is likely to be held responsible for the behavior because there’s strict liability.
“Your managers and supervisors should know better, and you’re being held responsible vicariously for their actions,” Davis says.
The second type of harassment, hostile work environment, is defined as offensive, unwelcome, severe or pervasive behavior based on the protected characteristics of religion, age, disability, race or sex. It must be a demonstration of behavior that an individual is subjected to that they don’t want, don’t like, and is serious or happening frequently. And if it’s a supervisor who is creating the hostile working environment, the organization can again be held responsible.
However, there are steps a dental practice could take to avoid liability; to avoid legal responsibility for that supervisor’s actions.
Keith Gutstein, a partner and co-chair of the labor and employment practice at Kaufman Dolowich & Voluck, says it’s essential that the practice maintains an updated policy stating that discrimination and harassment are prohibited, and that there is a clear and easy-to-use complaint procedure making it simple for someone to file an internal complaint. Also, make certain there is a policy against retaliation.
Davis agrees, and stresses that the policy specifically apply to the dental practice workplace.
“Every workplace is unique,” she says. “You’ve got people working in close quarters. Maybe they’ve worked together for many years and have some familiarity with one another. So you want to have a carefully drafted policy.”
But a policy is worth nothing if people don’t understand it, Davis cautions. As such, it’s imperative to train staff with regard to the policy. And make certain a process is in place for comfortably bringing forward the concerns.
“Make sure everybody knows that if they have concerns, it’s totally okay to bring it to somebody’s attention,” she says. “And just as with any other leader, it’s critical for the dentist to model the behavior addressed in the policy.”
THE COST OF LIABILITY
If a dental practice has been negligent in establishing firm policies, procedures and training, the practice can be held responsible for an individual’s actions. Depending on the jurisdiction, Davis says, a practice can be named as a defendant just as an individual can.
“The practice can be held liable for negligence even if it’s not negligent,” Davis explains. “The practice can have a great policy, training, and an investigation process, but if one of its leaders decides to engage in quid pro quo sexual harassment, it doesn’t matter. The practice will be held responsible because it’s strict liability.”
Davis stresses the importance of everyone at the practice coming together collectively for interactive training sessions to understand where the boundaries are. Because boundaries are invisible, and they change depending on people’s moods.
So, how do you navigate the landscape?
“Avoid inflammatory topics,” Davis suggests. “If you tell sex jokes, you’re probably going to cross somebody’s boundary at some point. It’s risky behavior. And when you do cross someone’s boundary, because ultimately everyone messes up, own the behavior and apologize.”
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