Legal Ramifications Of Abuse And Discrimination

One need not consult a crystal ball to know that today the majority of our society considers morally reprehensible any discrimination or harassment based on gender, race, national origin, sexual preference or other immutable personal characteristics. Innumerable state and federal laws have been enacted to both deter these behaviors and compensate their victims. Determining the applicability of these laws to the broad spectrum of potential discrimination and harassment claims while considering possible factual permutations is about as accurate as fortune telling or palm reading.

Discrimination against and abuse of obstetrician/gynecologists takes place in a very unique environment, so legal protections can be somewhat cloudy. Like any good fortune teller, we can however reasonably predict the legal ramifications of such conduct by applying basic assumptions of applicable law. Undoubtedly many residents are abused and harassed by superiors as part of their Arite of passage. Without question, many male obstetrician/gynecologists experience discrimination by their patients which is rationalized using claims of preference, privacy or religion. With these assumptions we look to the law only to discover that such discrimination and harassment have not been specifically addressed either by lawmakers or the courts. Is it illegal? Perhaps. Lets consult our crystal ball.

Title VII of the Civil Rights Act of 1964, as amended in 1991, makes it unlawful for an employer Ato discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin[.]¹ If a resident can link the abuse he or she has received to one of these protected traits, then the law provides a remedy.² Even A >nonactionable but . . . damaging >micro-inequities can lead to legal problems. For one, it is not that difficult for an individual to make a preliminary showing of discrimination, known as a prima facie case, nor is it difficult to allege harassment. Thus medical employers can face substantial losses in time and adverse publicity plus professional fees for legal and public relations services before these Anonactionable claims are finally put to bed. For another, one cannot predict when formerly unprotected conduct will become actionable. To date no claims of resident abuse have made it to trial but their time may yet come.

Although not actionable under Title VII these Amicro-inequities might be litigated under other legal theories. One is intentional infliction of emotional distress, otherwise known as the tort of outrage. To make this claim the plaintiff must prove that the abusers conduct was so outrageous in character and so extreme in degree as to be beyond all reasonable bounds of decency, regarded as atrocious and utterly intolerable in a civilized community.³ The plaintiff must also suffer severe emotional distress.

In the case of an abused resident, he would have to show that the manner in which he was singled out, embarrassed, threatened, verbally abused, ridiculed or humiliated was outrageous. While there are no reported cases in the context of resident abuse, and this is typically a difficult claim for plaintiffs to win in some jurisdictions, it remains a real possibility for future litigation.

Similar claims have been brought by employees against their employers for harassment at the hands of their supervisors. Last year in Texas, some GT&E employees brought a successful claim for intentional infliction of emotional distress.⁴ On a daily basis their supervisor yelled at and cursed them, forced them to do humiliating things like wear Post-It notes on their person when they forgot something, assigned them menial tasks like vacuuming their offices even though GT&E had a cleaning service, and called employees into his office to simply stare at them for prolonged periods of time.

The court noted that neither insensitivity, rude behavior nor Ainsults, indignities, threats, annoyances, petty oppressions, or other trivialities rose to the level of extreme and outrageous conduct. In the workplace, employers must remain free to criticize and discipline their employees so something more must be shown. In this case, the supervisors behavior as a whole put his conduct beyond ordinary employment disputes and into the realm of Aextreme and outrageous conduct.

The bottom line is that neither healthcare professionals, employers nor patients have carte blanche to abuse residents, yet they also need not cater to supersensitive residents. In analyzing the legal ramifications of resident abuse one must consider the conduct involved in toto. Individual incidents of humiliation and verbal abuse must be tolerated but an extreme pattern of this type of behavior may culminate in a successful claim alleging intentional infliction of emotional distress. Thus, a conservative soothsayer would foretell of future lawsuits based upon egregious incidents of resident abuse while warning hospitals and healthcare providers to promptly address such abuse with employee training programs, clear prohibitions in personnel policies and procedures, and prompt disciplinary actions against all violators.

The legal mists within our crystal ball become much thicker when queried about discriminatory obstetric and gynecology patients, only compounded by a unique 100% female population. Patients typically discriminate for one of three general reasons: preference, privacy or religion. We can dispose of patient preference quickly. Leaving aside for now the issue of gender, hospitals and other medical employers cannot justify discrimination by laying blame on their customers, i.e., their patients. No court would find Caucasian race to be a Bona Fide Occupational Qualification (BFOQ) for being an obstetrician/gynecologist simply because some patients prefer to be cared for by Caucasians.

A BFOQ is a recognized exception to Title VIIs ban on discrimination. It permits employers to hire based on sex, religion or national origin qualifications, and only on these, when it is Areasonably necessary to the normal operation of that particular business or enterprise.⁵ The Equal Employment Opportunity Commission (EEOC) has issued guidelines stating that the BFOQ exception to Title VII is not applicable to the Arefusal to hire an individual because of the preferences of coworkers, the employer, clients or customers[.]⁶

Does the guideline resolve the matter when gender is at issue? This question has been tested in legal forums regarding other job categories such as labor and delivery nurses or prison guards with varying degrees of success, but it has not been tested with specific reference to male obstetrician/gynecologists. Precedent cases are of limited assistance in determining how courts would view discrimination against these physicians because there are unique differences between the jobs in question.

For instance, unlike male obstetrician/gynecologists, male labor and delivery nurses are not preselected by their patients. Labor and delivery nurses are often complete strangers to their patients. The law has recognized the privacy rights of patients to Ashield ones unclothed figure from view of strangers, and particularly strangers of the opposite sex,⁷ so male labor and delivery nurses usually lose their lawsuits. The law notes that prisoners have fewer exceptions (and rights) of privacy than the rest of society when guards are assigned to prison areas housing inmates of the opposite sex, so these cases more often are decided in favor of the guards. Given the above-stated EEOC general guideline, medical employers should nonetheless hesitate before making a hiring decision based upon an obstetrician/gynecologists gender.

When we consider the remaining two general reasons for discrimination against male obstetrician/gynecologists, privacy and religion, we find that medical employers face another obstacle: their bottom line. Most healthcare professionals obviously strive to respect their patients privacy and religious beliefs. If they do not and nonconsensual touching takes place, they may be charged with criminal or civil assault and battery. Unfortunately for medical employers, obstetric and gynecology patients have increasingly shown a preference for treatment by other females, a trend which arguably may cut nondiscriminating employers profits but is no excuse for discrimination. The safest practice and the right thing to do is hire based upon professional qualification instead of gender, arranging when reasonably possible the preferred coverage for all objecting patients.⁸ Attempting to discern patients who object for religious or privacy reasons is likely to lead to trouble, so its best to resist the urge.

As spouses of a physician and a psychologist and as lawyers who defend medical employers, the authors are especially sympathetic to physicians, employers and patients facing these issues. Our crystal ball has revealed a myriad of competing rights and hazy or nonexistent legal precedents. We are strong proponents of diversity training to heighten the sensitivity of every healthcare worker to these issues. Providing such training may indeed benefit any employer later accused of harassment or abuse. He may demonstrate to a court or jury that he tried to show his employees and doctors the evils of discrimination and prevent its practice.

What does the future hold? We can only guess, but forward-looking medical employers and physicians will be well-served to treat everyone with respect.

1.42 U.S.C. ' 2000e-2(a)(1).

2.See, e.g., Lipsett v. Univ. of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

3.See, e.g., Dzingliski v. Weirton Steel Corp., 191 W. Va. 278, 445 S.E.2d 29 (1994).

4.GT&E Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Texas 1999).

5.42 U.S.C. ' 2000e-2(e).

6.29 C.F.R. ' 1604.2 (a)(1)(iii).

7.Local 567 Am Fedn of State, County and Mun Employees v. Michigan Council 25, 635 F.Supp. 1010 (E.D. Mich. 1986)(quoting York v. Story, 324 F.2d 450 (9th Cir. 1963) cert. denied, 376 U.S. 939, 84 S. Ct. 794, 11 L.Ed. 2d 659 (1964).

8.Patients admitted to hospital typically consent in writing to accept appropriate medical treatment and therefore accept the ministrations of hospital personnel. They then assume the hospital has selected a competent staff. Thus professional qualifications, not gender, is the appropriate hiring consideration for medical employers. See Elsa M. Shartsis, Privacy as Rationale for the Sex-Based BFOQ, 1985 Det.C.L.Rev. 865 (1985).