Sexual Orientation Discrimination in the Dental Office
Legalized gay marriage in a number of states has increased the focus of laws already protecting against discrimination based on sexual orientation. It is even more important now for all dental office staff to be aware of the rights of all gay people, as well as prevent any stereotypes associated with gay people from persisting and allowing for actions which may disrupt the positive work efforts of all practice personnel.
One essential aspect of the protections of laws against discrimination based on sexual orientation is that it protects all people, gay or straight, from unlawful actions based on gay stereotyping. The sexual preference of a person has been ruled not to be a factor to be considered when ruling on a case where discrimination or harassment based on sexual orientation is alleged. Employees’ actions which include gay stereotypes such as effeminate characteristics of men, or masculine characteristics of women are considered to be violations even if the person openly professes his or her sexual preferences only for members of the opposite sex. The standard is whether in the minds of the victim the actions are hurtful or offensive.
Discrimination based on sexual orientation in the workplace is also different than same-sex harassment because in job discrimination cases, there has to be an “adverse action” which negatively impacts a “term or condition” of employment. More simply put, to discriminate against an employee because of sexual orientation an employer has to fire, or not hire, demote or fail to promote, or any other significant negative employment action.
Same-sex harassment, on the other hand, is considered on a different standard, with more intangibles considered, like the embarrassment or emotional damages caused to the victim because of remarks or actions based on gay stereotypes. The courts often have to make a judgment about what the person being harassed feels about the actions, rather than what harm the alleged harassers intended to inflict.
The difficulty courts have with this more subjective standard for damages is the defense often used in same-sex harassment cases of “welcomeness.” Often, the harassers will say that the victim is always “joking” around about gays and gay stereotypes and never exhibits any objection to the alleged sexual joking. Psychiatrists and the courts often cite the defensive nature of trying to “fit in” with the crowd of workers joking about stereotypes, and how that is often just a front for someone who really is hurt by the joking.
One of the keys to avoiding liability for either sexual orientation discrimination or same-sex harassment is by taking steps to prevent the discrimination or harassment from happening in the first place through clear training and rules in the workplace prohibiting sexual orientation discrimination or harassment. An office manual must clearly state such rules and they must be acknowledged by each employee as a prerequisite to employment by the practice.
One of the rules which every office should make clear is the requirement that all actions which may possibly be considered same-sex discrimination or harassment be reported immediately to a supervisor. Liability for a practice for same sex harassment among employees is not actionable unless a supervisor both knew of the actions, or should have known of the actions, and did nothing about them once a report was made to a supervisor or manager. Correction of the harassing behavior is as important as preventing the behavior in the first place. The harasser should be told that such comments or actions will not be tolerated or dismissal will result.
As societal norms change regarding sexual preferences, discrimination laws change too, so to avoid liability dental practices must be aware of the latest in this area, and inform their employees appropriately.