Sexual harassment

by Dianne D. Glasscoe

Dear Dianne:

I have been a hygienist for 15 years in a general dentistry practice in the East. My boss is an excellent clinician, and I enjoy a good working relationship with him.

However, something very disturbing happened recently in my operatory. A male patient in my chair reached out and fondled my breast. I was sitting at the 8 o'clock position and was reaching to pick up an instrument on my rear delivery tray. The patient was on nitrous oxide.

I was so shocked and startled that I did not know how to react. The patient was lying in the chair with his eyes closed. I decided to ignore the incident and finish the visit as best I could, even though my hands were trembling.

After the patient was dismissed, I took the doctor aside and told him what had happened. His reaction was as if it was no big deal. He tried to downplay the incident, saying that it was probably an "accidental" touch. He even defended the patient to the point of saying that since the patient was on nitrous oxide, he probably didn't know what he was doing!

There is no doubt in my mind that this was no accident. The patient deliberately reached up with his hand and grabbed my breast. I should also mention that the patient is a prominent man in our town and a city councilman. He and the doctor are personal friends.

What should I do? I'm the only hygienist in this practice, and I shudder at the thought of him being in my chair again. Could nitrous have caused him to behave in this way?
Sexually Harassed Hygienist

Dear Sexually Harassed:

Two wrongs were committed here. First, a patient sexually molests you. Then your boss goes so far as to defend the jerk! What an unfortunate position for you to be in! Let's address the molestation first.

Dental clinicians work in close proximity to patients and in various positions about the patient's upper body. Certain positions could be considered risky, such as reaching across the patient's face to retrieve something on the opposite side. If the female clinician is large-chested, she has to strive at maintaining a "safe" distance from the patient's body. Additionally, male hygienists and doctors must take care not to accidentally touch a large-chested female patient's bosom while rendering treatment. In some cases, this can prove to be a huge challenge (no pun intended!).

However, this patient's actions constitute sexual molestation and/or harassment. The basic definition of sexual harassment comes from the United Stated Equal Employment Opportunity Commission (EEOC): "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

Since it is every employer's responsibility to provide a safe, non-threatening work environment, your employer could be held liable. He knew about the sexual molestation and failed to take corrective action. In fact, the EEOC requires all organizations with more than 15 employees to develop a sexual harassment policy, to make that policy public, and train employees in issues of sexual harassment.

Of course, most dental offices are not that large. However, sexual harassment should not be tolerated in any size of a business. Just because the employer is not forced to establish a sexual harassment policy does not mean that sexual harassment can be ignored. Anyone can file a complaint, no matter how large the company.

Nitrous oxide sedation is used to take away anxiety. When I was on nitrous for my third molar extractions, I remember feeling like I was about to fall asleep. The doctor's contention that the nitrous skewed the patient's sensibilities is simply invalid. I'll wager that this patient knew exactly what he was doing.

Your reaction to the molestation is understandable. However, it is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. If anything like this ever happens again, speak up at the time. Be sure to say "no" clearly, firmly, and without smiling. If you decide to file charges later, it's helpful (although not necessary) to have objected to the behavior. If you smile or act unsure of yourself, the harasser may think you're saying "yes" instead of "no."

Actually, you exercised a great deal of composure. If it had been me, I would have been tempted to "accidentally" gouge him in the tongue with a sharp sickle scaler!

My advice is to talk to the doctor candidly about this issue. At the very least, the patient should be dismissed from the practice. It makes no difference who this man is or what community standing he enjoys. Further, I would not care if he was the president of the United States. I would refuse to treat him again. Your boss should be concerned that this man may try this same move on another staff member.

You do have one more course of action, but follow through only if you desire to leave your employment there. If the doctor does not deal with your situation, you can file a complaint with the EEOC. The Equal Employment Opportunity Commission is a federal agency that enforces federal anti-discrimination laws. Some states automatically notify the EEOC if you file a complaint with your state agency, or you can file with both. There are some strict statutes of limitations for filing claims. If the harassment is serious enough to require legal action, do not delay in making a complaint. If the EEOC finds that you have a valid claim, that agency may prosecute the claim for you or may notify you that you have authority to bring a claim against your employer in federal court.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

I'll bet this doctor would not have been so insensitive if you were his daughter or wife.
Best wishes,
Dianne

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser's conduct must be unwelcome.

The doctor's reaction to the problem disturbs me. I'm sure if I would have been in your position, I would have felt hurt, disrespected, and angry. The disloyalty he expressed to you, his staff member, shows that he values his friendship with the patient more than his working relationship with you.

According to the EEOC, there are two legally recognized types of sexual harassment: quid pro quo sexual harassment, and hostile environment sexual harassment.

Quid pro quo sexual harassment occurs when an individual's submission to or rejection of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual's submission to such conduct is made a term or condition of employment.

Some legal factors related to quid pro quo sexual harassment include:

• It is sufficient to show a threat of economic loss to prove quid pro quo sexual harassment.
• A single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits.
• Courts have held employers strictly liable for quid pro quo sexual harassment initiated by supervisory employees.
• A subordinate who submits and then changes her or his mind and refuses can still bring quid pro quo sexual harassment charges.

Hostile environment sexual harassment occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates a hostile, intimidating or offensive work environment even though the harassment may not result in tangible or economic job consequences — that is, the person may not lose pay or a promotion.

There are two conditions that determine liability for employers in cases of hostile environment sexual harassment:

• The employer knew or should have known about the harassment, and

• The employer failed to take appropriate corrective action.

An employer can be held liable for the creation of a hostile environment by a supervisor, by non-supervisory personnel, or by the acts of the employer's customers or independent contractors if the employer has knowledge of such harassment and fails to correct it.

An employer may be expected to know about the hostile environment if there was a complaint to management, or if management failed to establish a policy against sexual harassment.