{ the dental team } by Jodi Schafer, SPHR
Harassment liability for behavior occurring outside the workplace
I know I have to be diligent about preventing harassment in my practice. However, I’m wondering if I also have to worry about inappropriate behavior happening outside of the workplace? I’ve been to a few dental meetings and conferences lately with my some of my staff where I felt like the behavior started to get out of hand, typically after everyone has had a few drinks. Should I be worried about this?
Y
es. Unlawful harassment is not confined to the four walls of your practice or limited by your office hours.
Employers can be liable for harass- ment anytime they are requiring an employee to interact with others as part of their job. This includes interac- tion with vendors, patients, dentists, independent contractors, consultants, community members, other employ- ees, etc.
If an employee of yours is subjected to unwanted/unwelcomed behavior dur- ing the course of their work, then you have some risk of a potential harassment claim if you knew (or should have known) about the situation and failed to do anything about it. If you encourage or require employees to attend dental meetings or conferences as part of their job, then you need to treat those environments as an extension of your office. From a liability standpoint, what happens at those events should be treated no differ- ently than if it were to happen in your own waiting room. That being said, I do want to differentiate between ‘inappropriate behav- ior’ and ‘harassment’ because they are not interchangeable. While all forms of harass- ment also could be considered inappropriate behavior, not all inappropriate behavior rises to the level of harassment.
Harassment has a very specific legal defini- tion based upon protected classifications like race, sex, religion, age, etc. It takes the form of either quid pro quo harassment or
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hostile work environment. Quid pro quo harassment is what we commonly think of as sexual harassment and it occurs when a person in a position of authority promises a desirable outcome for an employee (i.e., promotion, raise, better work schedule, continued employment) in exchange for the employee submitting to a sexual favor. It also can occur if the rejection of a sexual advance results in an adverse employment action (i.e., demotion, lost privileges, termination).
The other form of unlawful harassment is hostile work environment. This happens when an employee is subjected to behavior that is “sufficiently severe and pervasive enough that it affects the employee’s psycho- logical well-being”. In layman’s terms, this means that the behavior is so troublesome that it impacts a person’s day-to-day ability to work and to live. The hard part for employers is that the impact of the behavior is viewed from the perspective of the person being affected by it, including those who witness
it. So, what one employee may find funny, endearing or flattering, another employee may find offensive.
As mentioned earlier, inappropriate be- havior/comments must be based upon a protected classification in order for it to qualify as harassment. For example, taunting a Kansas fan over a recent loss to Missouri may be considered annoying or disruptive, but it does not constitute harassment because being a Kansas fan is not a protected clas- sification (although some readers may think it should be!). On the other hand,
teasing a Jewish employee about their kosher eating habits could qualify as harassment because religion is a protected category at both the state and federal level.
So, to bring this full circle, if you encounter inappropriate behavior when your staff is attending work-related events outside of the office, take notice! You will want to treat these occurrences with the same level of care and attention as you would within your prac- tice. Reminding your employees about what your expectations are when they attend these events and encouraging them to bring any potential areas of concern to your attention is a good start. You need to protect your staff and protect your practice from inappropriate behavior AND unlawful harassment, regard- less of where it is occurring. f
JODI SCHAFER is a certified Senior Professional in Human Resources (SPHR) and owner of Human Resource Manage- ment Services, LLC. Learn more at
www.hrmservices.biz.
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