All medical, dental, veterinary, and optometry practices that have at least five employees (under California law) or 15 employees (under federal law) must take steps to prevent employment discrimination claims and lawsuits, which are a huge drain on a practitioner’s money and time. These steps should include becoming and staying aware of all current relevant federal, state, and city anti-discrimination laws, training supervisors and all other employees, having clear written procedures, conducting prompt and thorough investigations of any complaints, and having a workplace culture where everyone knows that you will not tolerate any form of unlawful discrimination.
If you have a small or medium-sized healthcare practice, you and your staff are likely to be a tight-knit group. Ideally, everyone will be pulling together, striving for the same goals. If an employee even suspects that he or she is being discriminated against, that can fatally rupture the sense of trust among the members of your work "family" that your practice needs to reach its full potential.
If the employee files a discrimination claim or a lawsuit, that will unleash a whole new realm of problems. If you lose the claim or lawsuit, you will likely have to pay a steep price for the settlement or jury award, and you will also have to pay the employee’s attorney’s fees. You may have to pay the employee for back pay, front pay, lost benefits, additional penalties (for example double back pay), and punitive damages.
Even if the claim is unfounded and you ultimately win, having to defend against the claim will consume a great deal of your time and money and can lower employee morale and damage your reputation in the community.
It’s far better to avoid these problems by taking steps to prevent discrimination from occurring in your practice in the first place. When it comes to employment discrimination, an ounce of prevention really is worth at least a pound of cure.
An employee can file a claim or lawsuit alleging employment discrimination only if the type of discrimination alleged is unlawful. For example, if you hire new employees based on their experience and skill, you are, in a sense, discriminating among the applicants by choosing those who have more skills -- but that is perfectly legal.
In order for employment discrimination to be unlawful, the discrimination must be based on the employee being a part of what are called “protected classes.” The most common types of employment discrimination claims are for discrimination based on the protected classes of sex, disability, race, and age (40 and up). However, there are other protected classes. You need to be aware of the protected classes in your state and, in some cases, local law because these may include more classes than are included in federal law.
In addition to sex, disability, race, and age, federal law also prohibits discrimination based on national origin, color, religion, genetic information (including family medical history), pregnancy, sexual orientation, and gender identity. These protections apply to current employees, former employees, and job applicants. In addition, federal law prohibits employers from retaliating against employees who exercised their rights to oppose unlawful discrimination, for example, by filing a claim.
Employers in California are subject to both federal and California employment discrimination laws. California law tends to provide more protections for employees than federal law and this includes having more protected classes.
The protected classes under California state law are race, color, ancestry, national origin, religion, creed, age (40 and up), mental or physical disability, sex, gender, pregnancy, childbirth, breastfeeding, sexual orientation, gender identity, gender expression, medical condition, genetic information (including predisposition to a hereditary disease), marital status, and military or veteran status.
Some cities or other localities may also have their own employment discrimination laws, which will apply in addition to the federal and state laws. For example, San Francisco prohibits discrimination against workers based on their height or weight.
Employment discrimination claims and lawsuits generally fall into two categories. Disparate treatment is discrimination against employees that is done intentionally because of the employees being in a protected class. Examples of disparate treatments are if an employer intentionally hires only job applicants who are of a specific race for a specific type of job, or if an employer has a policy to not offer promotions to employees who are over a certain age (any age over 40).
If employees are not able to prove that there was intentional discrimination against them, they may try to prove that there was a disparate impact. This approach relies on statistics to show that even if the employer’s policies appear to be neutral, the policies have a greater negative impact on members of a protected group. For example, if job applicants are given a test that disproportionately eliminates members of a protected class, this may be disparate impact even if the employer did not intend for the test to be unlawfully discriminatory.
The lesson here for employers is that having good intentions may not be enough to shield you from employment discrimination claims or lawsuits. You also need to be aware of ways that your policies might unintentionally be discriminating against members of protected classes and be prepared to change those policies when necessary.
The federal laws prohibiting employment discrimination are spread out among many different statutes and regulations, which makes it difficult to impossible for a busy medical or dental practitioner to find all the relevant laws, much less keep up with all the changes.
The many places where federal employment discrimination law can be found include:
In California, state anti-discrimination laws are contained in the Fair Employment and Housing Act (FEHA) and are enforced by the Department of Fair Employment and Housing (DFEH).
In addition to California having more protected classes, there are other ways that California employment discrimination law favors employees even more than federal law does. For example, California laws are often more favorable to employees:
California law also prohibits genetic testing of employees, and it is unlawful for employers to require employees to use only English in the workplace unless there is a valid business reason for doing so.
Taking the following steps will provide the best available protection from discrimination claims and lawsuits.
Even in a small practice, you should document all of your anti-discrimination policies in writing. This helps eliminate misunderstandings and ensure that employees are actually aware of and understand the policies. Also, if you do have a claim or lawsuit filed against you, an important part of your defense will be your being able to produce the written policies to show they were in force at the time of the alleged discrimination.
The written policies should include:
The written policies may be part of an employee handbook or in some other form of documentation. However you distribute the policies, it’s a good idea to have employees initial and date a form stating that they received and understood the policies.
Managers and supervisors should have special training that conveys that they are responsible for preventing discrimination. They should be trained to recognize signs of illegal discrimination and to know what actions to take when they discover discrimination. Their training should also cover how to recognize and respond to retaliation, harassment, bullying, anger, and violence or potential violence.
All non-supervisory employees should also receive periodic anti-discrimination training that covers many of the same issues.
It’s important that you respond to all internal complaints of discrimination quickly and appropriately. Document everything, and conduct a thorough investigation. You may need to use an impartial outside investigator. Sometimes internal investigations resolve the problem, and the employee doesn’t take any further action. However, if after an internal investigation, the employee files a claim with a government agency or files a lawsuit, the fact that you conducted a thorough investigation can be used as proof that you acted in good faith.
Anti-discrimination laws and regulations may change often on the federal, state, and local levels. New laws may be passed, existing laws may be amended, and new regulations or guidance may go into effect. Whenever there is a change to the laws that affect your practice, you need to make sure that your policies, procedures, and training incorporate all of the relevant changes.
One area of employment law that is changing rapidly involves how employers in California may implement COVID-19 vaccination policies. At the time this post was written, California required that healthcare workers, state employees, and workers in high-risk situations show proof of vaccination or get tested weekly. At this time, California does not require that other employees be vaccinated, but it does allow private employers to set their own vaccination policies if they wish.
When you are implementing a vaccination policy in your practice, you need to be careful that you don’t violate anti-discrimination laws. Steps you can take to protect yourself from discrimination claims include creating policies that cover:
California’s laws on mandatory vaccination policies for employees could change at any time, especially if the virus continues to spread, so you should be prepared in case the laws do change.
OSHA issued guidance on COVID-19 protections in the workplace.
As discussed above, employment discrimination law involves different levels of law -- federal, state, and local -- and are embedded in many different statutes. As an employer, you could face devastating consequences if you don’t take the steps necessary to prevent yourself from becoming the target of employment discrimination claims.
The good news is that by taking the proper precautions, you can go a long way towards cutting off the problem at the root by preventing employment discrimination from ever occurring in your practice. You can also take steps to mitigate any damage if you are the target of a claim by following the procedures that will provide a strong defense.
At Dental & Medical Counsel, we work exclusively with dental, medical, optometry, and veterinary practices. We know what policies are needed in a small and medium-sized practice and how best to implement them. Contact us to schedule a complimentary consultation with employment attorney Ali Oromchian and to find out more about how we can protect your practice from these highly destructive claims.
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