by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the July/August 1997 issue of the Journal
Question: Sexual harassment in the workplace has become a major problem in our country and I understand it has become a major cause of litigation. As practicing dentists and active members of the MDA, I assume we should be sensitive to this problem. What is sexual harassment and what is the basis upon which legal claims are asserted?
Answer: You are correct that sexual harassment has become a major problem in the workplace and a primary basis for litigation. You are also correct that dentists, either in their separate practice or as members of MDA, are subject to the sexual harassment laws.
Sexual harassment has been defined in many ways. A good definition is found in the Equal Employment Opportunity Commission guidelines, which include sexual harassment as a form of sex discrimination prohibited by federal law: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature...when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose of interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."
Sexual harassment is based upon two separate legal theories. The first legal theory can be described as "quid pro quo." This is based upon the proposed exchange of job benefits for sexual favors. Employee benefits are made contingent upon sexual cooperation and force the employee to choose between suffering and economic detriment and submitting to sexual demands. Such sexual harassment can be committed only by a supervisor or some person in a superior position in the employer's hierarchy who has the authority to affect the economic benefits of the employee. This could be a dentist in private practice or an MDA member who has an authoritative position on the MDA board or committee.
The victim can be female or male and could even extend to others who are not involved in the quid pro quo transaction but were denied employee benefits as a result. An employer, including the MDA or a component or specialty dental society, could be liable for quid pro quo sexual harassment by superiors regardless of whether the specific acts complained of were authorized or specifically forbidden by the employer, and regardless of whether the employer knew or should have known of their occurrence.
The second legal theory upon which sexual harassment claims are based is described as "hostile work environment." This involves sex-related conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Multiple factors may affect the determination as to whether a working environment is "hostile." The workplace can be rendered hostile not only by persons in a supervisory or superior position, but also by the conduct of co-workers, and even by the conduct of non-employees such as customers, vendors or members of an organization such as the MDA. The victim may be a co-worker who is affected by conduct directed toward another, since the sexual harassment of one employee may create intimidating or hostile working conditions for others. The employer or association may be liable for a hostile working environment due to sexual harassment by supervisors or co-workers if the employer, or association, through its agents or supervisors, knows or should have known of the conduct, unless it can show that immediate and appropriate corrective action was taken.
A hostile work environment is "sexual" not because it necessarily involves or invites sexual activity, but because the offensive conduct is based on the victim's sex. In contrast to the quid pro quo sexual harassment claim, the hostile work environment claim is that the individual has been required to endure a work environment that, while causing no direct economic harm, can cause psychological or emotional harm or otherwise unreasonably interfere with the individual's job performance.
A carefully thought out sexual harassment policy is necessary for employers to protect against liability for such claims. An essential part of such a policy is a clear procedure for reporting and responding to claims of sexual harassment. A sexual harassment policy should be drafted with the assistance of legal counsel.