What were once habits may be vices in today’s workplace

Anti-discrimination policies can help keep up with the evolving definition of acceptable workplace behavior.

By Stuart Michaelson, Contributing Editor

It’s only human nature. On Monday morning, your employees ease into the workweek and recount their weekends, and one asks, “Did you catch last night’s ‘Girls’ ’ episode?”

That’s a discussion probably best engaged in private. Because just as HBO’s bawdy hit comedy has evolved from TV’s ever-changing landscape, so too has the definition of a hostile environment evolved in the work place.

If you have a small practice, frequently one where men supervise women, the shifting mores can land you in court or at least drain energy from your practice.

“The culture of the workplace and what behavior is allowed has changed; things are more politically correct now,” says Deborah A. Keary, vice president with the Society for Human Resource Management (SHRM) in Alexandria, Va.

“A key factor is the understanding of what a ‘reasonable person’ would consider to be out of line — as opposed to whether a person making a complaint was being unreasonable or if the treatment described is harassment — such as the difference between ‘You touched my arm either because you have something else in mind or you are just being normally friendly,’ ” she says.

This article explores how the definition of a hostile work environment has evolved over the years, and what practice managers and employees must be mindful of when interacting with each other.

THE SCOPE OF THE PROBLEM

Vicarious liability

While no specific statistics have tracked harassment in medical practices, 27% of adult Americans have said they directly experienced abusive conduct at work, according to a study Zogby Analytics conducted this year for the Workplace Bullying Institute (www.workplacebullying.org), an organization that provides resources to address bullying at work. In the survey, 7% said they are currently subjects of bullying at work, and 20% said they were previously subjected to such behavior. The survey found that 93% of respondents support laws to protect employees from workplace harassment.

Then, there is the concept of vicarious liability, when the employer can be held liable for a supervisor’s alleged harassment. “A defense could be that ‘I took reasonable care to prevent any harassment’ and the employee unreasonably failed to take advantage of preventative or corrective opportunities,” says Amy Z. Snyder, a Philadelphia labor attorney. “The employer should have a mechanism in place, such as an anti-harassment policy and the policy should encourage employees to come forward and not wait too long (to report incidents).”

Small workplaces, big challenges

Large companies typically have detailed anti-harassment policies and training programs, but smaller businesses should give them a look, too.

Solutions to keeping your staff and yourself armed with the right information to steer clear of becoming a breeding ground for a hostile environment are many, ranging from carefully crafted policies and practices to training programs, office meetings and thorough record-keeping.

That starts with knowing what a hostile work environment is. “That has been defined by the courts as one in which discrimination is so severe or pervasive that it alters the terms and conditions of employment,” Ms. Snyder explains.

More broadly, Ms. Snyder says of small offices, “People work side-by-side and the physical environment may be smaller and the personal relations can be stronger. That may make it more difficult when a problem comes up in terms of how to address a co-worker. For example, something goes wrong among friends, and one of them starts to cross the line in terms of jokes that are told in the office and remarks in the office. Co-workers may take sides supporting one or the other.”

Smaller can be better

If your office is relatively small, you may have your own set of issues. Yet Ms. Keary, whose organization assists HR, sees advantages in small offices.

“In smaller offices, people all know each other a lot better and there are a lot more friends, and it is less likely that people will step over the line,” she says.

However, Ms. Snyder, who has represented health-care clients, though not ophthalmologists specifically, sees the occasional land mine in the small office setting.

“My impression is that harassment complaints might be more difficult in a small business,” she says. “People tend to know each other well, and may discuss things of a very personal nature. At times when you become such good friends, it may be harder to draw the line as to what is appropriate for the workplace and what may not be.”

POTENTIALLY TOXIC SITUATIONS

Overheard and overbearing

Ms. Snyder includes “Girls” among many shows that, if employees discuss them in the office, “might not be appropriate for work conversation.” Her advice for the physician or practice administrator who must deal with this situation: “Approach the two people who were talking and talk to them, separately, about any aspects of their conversation that were not appropriate for discussion in the workplace.”

Ms. Snyder adds that it is unlikely this particular instance would lead to a substantiated claim of harassment, although a second time might spur more substantial actions. “Remarks that are overheard in conversation can be part and parcel of a harassment complaint if the situation is severe or pervasive,” she says.

What about vendors?

Another tricky situation — again not the classic case of a workplace harasser —could involve someone who visits the office occasionally but regularly, such as a vendor.

What if a vendor flirts with or touches people or otherwise makes them uncomfortable? “The doctor should call the vendor’s company and make sure this vendor isn’t sent again,” Ms. Keary says. Ms. Snyder concurs: “Act as though it was any other employee.”

Workplace bullying

“Bullying has entered the vernacular,” Ms. Snyder says. “A practice can have policies prohibiting bullying, any type of intimidating or humiliating conduct, use of certain obscenities, yelling and threatening behavior, and anti-violence policies.”

She notes one case in which the employer successfully defended a terminated employee’s unemployment compensation claim because it showed the employee was terminated for cause – bullying other employees.

Workplace dating

While numerous relationships start at work and don’t affect the office environment, some do. Dating issues call for an evenhanded approach.

“Many companies have anti-fraternization policies,” Ms. Snyder says. “It is a function of the size of an office. What often matters is the position of the people involved, whether one has the ability to impact the other’s career or salary, if it involves a direct report, someone who controls their pay.

“When co-workers are involved in a relationship and it ends, if the one who didn’t want it to end is the boss, that can be a problem,” she adds. “Then there is morale, how it affects the other employees, or if the (scorned) boss won’t let it alone. In a small office this can be more difficult.”

Such issues, she says, can be addressed through anti-fraternization policies or by changing work assignments. “Make sure you are being evenhanded,” Ms. Snyder adds. “It depends on if office dating spills over into the work environment.”

HOSTILITY COSTS

Hostile work environments can lead to an increase in absenteeism and turnover, and a decrease in productivity, which can be problematic in a busy practice, Ms. Keary says. The employee who feels victimized and as if she cannot talk to anyone about it “will be out looking for a job” she says.

Ms. Snyder concurs. “There is a great cost to a defense, to having to litigate in court,” she says. “It depends on how many employees you have, how many plaintiffs, defendants, witnesses, lost office time, the cost in morale. You may have affected employees missing time from work. It can be extremely disruptive and very expensive when an employee is accused of contributing to or ignoring a hostile work environment.” OM