Sexual Harassment in the Dental Office Workplace

Sexual harassment in the workplace is a very commonly litigated complaint in employment law, and a dental practice’s dealing with the issue must be correct both proactively and reactively in order  to avoid disputes which may have a great negative impact on the practice and its employees.   The practice must first ensure that a proper and well understood written anti-harassment policy is in place and is confirmed in writing by all employees.  Secondly, it is important to note that a swift and thorough reaction to any complaints is done by owners or supervisors, because liability almost always requires that the harassment is condoned or overlooked by supervisors or owners.

A sexual harassment policy must include prohibitions on unwanted or sexually oriented physical contact, sexually suggestive verbal communications, or anything that could be considered a sexual advance.  Examples of actions that may be considered sexual harassment should be noted, including unnecessary touching of another employee by regularly brushing against the body, hugging, patting, or pinching.  Written notes which contain sexual innuendoes, using objects to portray sexual messages, or sexually oriented jokes should be explicitly prohibited.

A proper complaint procedure should be in place which requires the recipient of sexual harassment to report it immediately and directly to a supervisor, and not just to a co-worker.   Problems arise if a supervisor is made aware indirectly of the harassment, for it is when the supervisor is determined to be aware of the harassment and does  nothing to correct the situation that liability arises.  A way of discretely making a supervisor aware of a problem should be set up so that the employee is not afraid to speak up for fear that his or her interaction with other employees is negatively impacted.  A way to bypass the supervisor if he or she is the harasser must also be in place.

Employees must also be made aware in writing that they are not only required to report harassment against themselves but also if they have knowledge of harassment occurring against co-workers.  Harassment which goes unreported can only increase the likelihood of not only liability but of disrupting employment relationships throughout the office.

The response to any complaint of sexual harassment is the most commonly litigated aspect of this area of employment law.  The response to any complaint by the supervisor or practice owner must be swift and clear.   Discipline must be imposed to create a record of the proper response.  Mere verbal warnings are not enough to avoid liability, and a written note in a personnel file about any verbal communication, acknowledged by the alleged harasser,  should  be made.

It is important to note that the legal standard for whether conduct is inappropriate is not whether it is “voluntary” but whether it is “welcome.” A willing participant or contributor to sexually oriented conduct cannot file charges for sexual harassment, while for instance a showing that an employee submitted to conduct merely to keep his or her job would be actionable.   If conduct of a sexual nature is made a term or condition of employment or is a basis for employment decisions, a “quid pro quo” claim arises.

A hostile work environment is another form of harassment that is actionable which may or may not involve direct actions.  Items displayed in a sexually suggestive manner such as a pencil holder or instrument holder have been determined to be enough to create such a hostile environment if an employee is forced to view the items on a regular basis in his or her normal work routine.

Regular humiliation of an employee in a workplace is often the basis for harassment suits, and even seemingly innocuous sexually oriented comments, if made consistently enough or in a manner which embarrasses the employee can be considered to create a hostile environment.   Even if there is no intent of the alleged harasser to humiliate or exhibit sexually suggestive conduct to another employee, the effect on the employee creates the liability.

Interference with an employee’s performance on the job is a significant factor in the court’s weighing of a sexual harassment claim.   It is clear that any charge of unwelcome conduct with sexual overtones may impair interactions among all employees in the office, and the inability to do a  job effectively is a clear indicator that actionable sexual harassment is taking place.



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