Lawyers Tell Physicians How to Protect Themselves from the Pitfalls of Employment

WASHINGTON, DC-More often than not, today’s medical offices are businesses employing numerous staff people, as well as other physicians. In a seminar at the recent annual meeting of the American Academy of Otolaryngology-Head and Neck Surgery, panelists described the many legal pitfalls of employing people in a medical office. Most of them revolved around accusations and charges of discrimination-which often appear difficult to avoid.

You Can Hardly Say Anything Anymore

Sally Garr, JD, a partner in the Washington, DC, law firm of Patton Boggs and Chair of its Employment Law Group, spent more than a half-hour describing the many ways in which an employer can be sued for discrimination-and the many ways in which he or she can lose the case.

Although some of the examples she presented were more relevant to academic institutions and hospitals, Ms. Garr emphasized that a physician in private practice is indeed an employer and is just as responsible for maintaining a nondiscriminatory environment as are employers with much larger staffs.

She began by defining the parameters of a discrimination claim and the ways in which employers can protect themselves. A member of almost any minority or legally protected group can claim discrimination, and a suit can be brought on the basis of gender, sexual orientation, color, national origin (of oneself or one’s family), religion, physical characteristics, physical disability, and almost anything that is perceived as being outside the American mainstream, which in itself is difficult to define.

Ms. Garr described what employers must have in place to defend themselves:

A written policy that makes clear the office’s complete prohibition against discrimination in any form. All employees must be made aware of the policy and given a copy.

Managers must be given appropriate training in what discrimination is and how to prevent it, and they in turn must make certain that all employees understand the rules of conduct.

The physician employer must have a complaint procedure in place, and employees have to be made aware of that as well. Pick the right person to head your complaint process, said Ms. Garr, Otherwise, no one will use it. The person must be recognized as having integrity and enough power inside the office so employees will believe retaliation won’t be permitted.

All policies and procedures must be applied consistently to all employees, and employees who are similarly situated must be treated similarly. For example, if occasional slight tardiness is acceptable for white employees, then black employees who are sometimes a few minutes late may not be punished.

The most important thing, said Ms. Garr, is to have a mindset for fair play. Create a culture that takes pride in compliance. When an office constantly reinforces that it values compliance, employees will feel safer coming forward with complaints.

And if an employee does complain about discrimination, Treat him or her like a canary in a mineshaft. Listen carefully, take concerns seriously, and reply promptly. Ask the employee to immediately report conduct that appears retaliatory.

Harassment

Harassment is a subset of laws about discrimination, said Ms. Garr. It means unwelcome conduct by employees and others and is based on the protected status described above. Calling a turban-wearing Muslim a towelhead and intimating that he and his brethren want to take over the world was one of the examples she gave. Making rude jokes about women or ethnic groups was another. She acknowledged that most funny jokes are about groups of people, but she warned about the danger of telling them in the workplace, including the widespread practice of e-mailing them.

Harassment is more difficult to define than out-and-out discrimination, which is sometimes difficult enough to prove, but in general, it has three major characteristics: It creates a hostile environment, it is pervasive, and it is usually cumulative.

When harassment occurs, it is the employer-in this case, the physician-who is held accountable-and liable for damages. It is an insufficient defense for a physician-employer to say that he or she did not personally engage in the harassment, nor did he or she know about it. An employer has a moral duty and legal obligation to know what is going on in the office and to take steps to prevent or stop any unacceptable behavior.

As with discrimination, the physician-employer must have a policy about harassment in place, including procedures for remedies and protection against retaliation. This policy must be enforced in day-to-day activities, said Ms. Garr.

Employees have a right to complain about harassment and discrimination; therefore, there must be a procedure in place to enable them to do this. And if they suffer retaliation as a result of complaining (this is common among employers, supervisors, and co-workers, said Ms. Garr), they can complain about that too-and it is usually easy to prove because the action is so blatant.

Disability and the ADA

Carol Roberts Gerson, MD, a pediatric otolaryngologist in private practice in Chicago, said she thought that diversity in the workplace is generally a good thing. But working in Chicago, where neighborhoods are very racially and ethnically homogeneous, I can see that a physician’s office might be better off reflecting the characteristics of its patients. Everyone might be more comfortable that way.

Dr. Gerson then went on to discuss one of the protected groups that Ms. Garr mentioned: people with disabilities. She defined a disability the way the Americans with Disabilities Act (ADA) does: a physical impairment that substantially limits life activities.

This definition seems fairly clear until one has to decide who exactly is disabled and to what extent the disability confers protection against discrimination. For example, obesity-even morbid obesity-is not classified as a disability, even though there are many things that obese people cannot do or have great difficulty doing. But loss of a limb, loss of the ability to walk (even permanently needing crutches or a cane), blindness, deafness, and the like are protected conditions.

What must physician employers do to protect themselves against a charge of discrimination under the ADA? The law is, at the same time, clear and not clear. First, the disabled person must be capable of doing the job adequately and safely. For example, a blind man cannot reasonably be an ophthalmologist, but there’s no reason why he can’t be a general pediatrician or an oncologist.

Then, as long as the employee can do the job, the employer must make reasonable accommodation for the disability-for example, removing physical barriers (installing ramps or elevators), providing a computer screen with large type and/or voice enhancement, and allowing the employee’s service dog to come to work.

But accommodating people with disabilities is more than that. It requires looking at how the office is operated, how people treat the one with the disability, how programs are run, and the role of respect and inclusion.

©2008 The Triological Society