As the rapid increase of employment-related claims continues, so does the number of lawsuits against employers by employees claiming sexual or racial harassment at work. These claims include "assault and battery" types of harassment, the endurance of a hostile work environment, as well as the quid pro quo sexual harassment claim. The dental profession is not immune to these types of claims, particularly in light of the common gender make-up of most dental offices. This article will define the cause of action and its elements, and particular attention will be given to the procedures to be followed by an employer when a sexual harassment claim arises.

The "quid pro quo" type of sexual harassment, for which there is strict liability for an employer if proven, is defined in the law as behavior by supervisor that compels an employee to elect between acceding to sexual demands and forfeiting job benefits, continued employment or promotion, or otherwise suffering tangible job detriments. The elements of this cause of action are that 1) the employee was a member of protected class; 2) the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; 3) the harassment complained of was based on sex; 4) the employee’s submission to unwelcome advances was express or implied condition for receiving job benefits or employee’s refusal to submit to supervisor’s sexual demands resulted in tangible job detriment; and 5) the existence of respondeat superior liability (an employer-employee relationship).

Alternatively, the elements for a hostile work environment claim are that 1) the plaintiff belongs to protected group; 2) the plaintiff was subjected to unwelcome sexual harassment; 3) the harassment complained of affected “term, condition or privilege” of employment; and 4) the employer knew or should have known of the harassment and failed to take remedial action.

The cause of action for sexual harassment involving assault and battery include the following elements: 1) sexually oriented statements and actions; 2) which are considered to be outrageous and are repeated; 3) and are directed toward a (rising) subordinate; 4) who has objected repeatedly and in writing; 5) but who has been ignored or belittled by upper management; 6) and fired in retaliation for objecting or filing a charge; 7) but not before the individual defendant has pawed, grabbed & rubbed.

To minimize the exposure of sexual harassment claims, the employer should implement a strong anti-harassment policy wherein sexual harassment is defined, prohibited conduct is clearly identified, and the consequences of such conduct are clearly spelled out. The policy should be applied uniformly to include everyone from the doctor and office managers to assistants and dental hygienists. Employee supervisors, often the office managers, should be trained to recognize the difference between innocent conduct versus illegal behavior. The policy should set up an effective grievance procedure wherein all claims are investigated promptly and thoroughly, and ensuring that the employer will take immediate remedial action. In this regard, corrective action should reflect the severity of conduct, with the appropriate action ranging from a firm reprimand to a full discharge without pay.

Failure to provide a means of reporting and investigating sexual harassment complaints could place the employer in violation of the Civil Rights Act of 1964, which prohibits sexual harassment. Accordingly, the employer needs to understand how it must investigate complaints. If an employee does not have an effective in-house means of protesting discriminatory treatment by supervisors, coworkers, or others, he or she may seek outside legal help. The courts and the Equal Employment Opportunity Commission (EEOC) have made it clear that an employer that does not provide a reasonable means for resolving complaints of harassment and other discriminatory treatment is responsible for the discriminatory actions of its employees.

In regards to sexual harassment, EEOC guidelines provide that an employer must take "prompt remedial action reasonably calculated" to end sexual harassment. 29 C.F.R. § 1604.11. Therefore, employers need to have a complaint handling system to serve as protection against sexual harassment charges under a Title VII of the Civil Rights Act and similar state laws that prohibit gender discrimination. Although a reporting and investigation procedure does not provide an employer with complete safety from charges of harassment, employers that fail to provide such a means could be on shaky legal ground if charges are made.

Employers should investigate complaints promptly and thoroughly, using discretion, and good judgment. Also, there are certain policy concerns which must be understood by the employer to ensure confidentiality for the complaining employee. In cases of sexual harassment, employers need to recognize that victims may feel embarrassed or intimidated, particularly when the harasser is a supervisor. It is not enough simply to establish a policy against harassment and a routine complaint procedure. To encourage victims to come forward, the employer's procedure should ensure confidentiality as much as possible and should not require a victim to complain first to the supervisor, who may be creating or condoning the harassment situation. The employer must also provide effective protection against retaliation for complaining about sexual harassment or providing information during management's investigation. Confidentiality is particularly important because the accused harasser may file a defamation suit against the employer. Information about a complaint should be given only to individuals who need it, and all recipients of information should be instructed not to discuss the matter.

In processing harassment grievances, the employer should encourage complaints by creating a complaint procedure specifically covering this type of abuse and establish confidence in the employer's ability to enforce company rules. In fact, the EEOC advises that company procedures should encourage victims of sexual harassment to come forward with a complaint. This will work to improve the chances of being informed in time to act before becoming liable for sexual harassment claim. Employers should encourage employees to complain if they feel harassment is taking place. Any employee should be able to submit a complaint not only to his or her immediate supervisor, but to some other party as well. A swift, thorough, fair, and discreet procedure for resolving sexual harassment complaints will encourage victims to come forward. Some employers may balk at the notion of "putting ideas into people's heads" by encouraging complaints. Management may fear inviting unscrupulous or hypersensitive employees to sue the company. This fear is understandable, but the law is well-established that isolated, trivial, or innocent incidents of sexual misconduct do not constitute illegal sexual harassment.

The investigation should come promptly after the complaint is brought to the employer's attention. The extent and adequacy of an employer's investigation of a harassment claim will be considered in determining whether the employer took prompt remedial action reasonably calculated to end the harassment. Any delay could send signals that the organization is not taking the complaint seriously and is condoning the alleged actions. Interview the parties and any witnesses. Interview both the accuser and the accused, and ask them to identify any corroborating evidence or witnesses that could help resolve the matter. Determine from all sources the basic facts: (i) what happened, (ii) who the alleged harassers were, (iii) where and when the incident took place, (iv) how the complainant's work was affected, (v) whether anyone else witnessed the incident, (vi) whether the incident was isolated or part of a practice, (vii) what the reaction of the complainant was, (viii) how the complainant has been affected, (ix) whether the complainant has talked to anyone else about the incident, and (x) whether there is any documentation of the incident. The employer may want to look at questions such as whether the complaining employee or alleged harasser has any reason to lie, whether there are job performance problems, and whether the accused person has a credible explanation for the specific accusations. If the harasser does not offer any explanation or rebuttal of the charges, any reason he or she may give later will be less credible.

Determine the appropriate response. Once the facts have been gathered, determine the most appropriate action to take, preferably with the help of legal counsel. If the employer concludes that harassment has occurred, options include transfer of the harasser, demotion, discharge, or other steps in the company's disciplinary system. If evidence amounts to one person's word against another's, the employer may decide to warn the alleged harasser and advise him or her that if there are any further incidents, the first incident will be taken into account. The employer should document carefully the steps taken, the decision, and the supporting facts for later reference in case of ensuing litigation.

Where the employer cannot determine if a violation of policy has occurred, assure complainant that although no finding could be made on the claim, the employer intends to protect him/her and all employees against unlawful harassment and reprisal. Further, advise the alleged harasser that although the truth of the claim has not been determined, all employees are expected to comply with the company's policy against harassment and retaliation. The employer may consider some non-disciplinary steps, e.g., limited republication of the company's anti-harassment policy, obtaining acknowledgment from alleged harasser that the conduct alleged would violate policy, and sensitivity training.

If investigation shows a complaint is justified, the employer should do whatever is necessary to end the harassment and to make the victim whole by restoring lost employment benefits or opportunities, thereby promptly taking action "reasonably calculated to end the harassment." If the employee quit or was fired because of sexual harassment, pay the individual for that time. Any promotion, transfer, or raise that was denied because of sexual harassment should be given to the individual as soon as possible. Unfavorable evaluations or comments in the employee's personnel file that are the result of harassment should be removed or corrected. Then, follow up by making inquiries to ensure the harassment does not resume and the victim does not suffer retaliation.

In determining the appropriate level of discipline, consider the severity of the conduct (sexually harassing physical contact generally warrants greater discipline than mere verbal harassment). Ensure the discipline is adequate: each disciplinary act must be calculated to deter future harassment. If the discipline has not been effective, the employer is required to impose harsher sanctions. A warning is required for any misconduct, no matter how minor. At a minimum, remind all involved employees about the employer's policy prohibiting workplace harassment, tell them what conduct or communications constitute prohibited harassment, and warn them that violation of the company's anti-harassment policy may result in severe disciplinary action up to and including termination.

Boyd W. Shepherd is licensed to practice law and dentistry in the state of Texas, and is a member of the GHDS, TDA, and ADA.