© Gary Inglese

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1535 Lake Cook Road, Suite 602
Northbrook, IL 60062
Phone: (847)272-2900
​Fax: (847)272-3070

Dental Defense - Illinois Department of Financial and Professional Regulations Defense - Dental-Legal Issues - Dental Risk Management - Dental Contracts and Business Issues - Dental Office Transitions

The financial exposure from a lawsuit alleging employment discrimination, harassment or retaliation can be huge.  Not only is the cost of your defense to be considered, but if you lose, you will also pay the fees of your accuser’s legal representation.  These are the cases that frequently have large judgements that make large headlines.  The publicity is not the publicity one would generally seek to promote their practice.

Since most comprehensive general liability insurance policies expressly exclude employment practices claims, this is something most small practices are typically not insured for.  This type of insurance coverage, called EPLI, or employment practices liability insurance tends to be very costly.  The premium could be almost $4,000 per year with a $5,000 to $10,000 deductible.  Most small practices don’t have this type of insurance.

Obviously, the best thing to do is put procedures into place to avoid any claim.

Implementation of an office policy against discrimination, harassment and retaliation

Every practice should have a harassment, discrimination and retaliation prevention policy established.  It should be signed by each employee and retained.  The reason you need this is because if there is ever a case against your practice you want the plaintiff’s attorney, jury members and the judge to understand your commitment against harassment, discrimination and retaliation.  According to state law, the policy must:

  • List all current characteristics protected
  • Specify that legal protections apply to unlawful conduct by supervisors, coworkers and 3d parties
  • Instruct supervisors to report complaints of misconduct to designated personnel
  • Outline procedures for your employees to report complaints to someone other than a direct supervisor, and mechanisms to ensure timely investigations and responses for all complaints
  • Provide for confidentiality throughout the investigation process to the extent possible
  • Indicate that remedial measures will be taken following an investigation, if appropriate
  • Specify that retaliation for making a complaint or participating in an investigation is prohibited
  • Be translated into other languages if the spoken language of at least 10% of the workforce is a language other than English
  • Be given to and signed by all employees.


Disallow all discussion about the personal characteristics of your employees

It is not permitted to discriminate, harass or retaliate against any employee based on any of the protected categories – race, gender, disability, national origin, color and so forth.  This means that under the law, you cannot take any job action like refusal to hire, refusal to promote, or termination based on any of the protected categories.

This means no joking, no commenting, no discussing of any personal characteristics of your employees and insisting your employees avoid the same.  You will realize the protected categories are made up of nothing more than the personal characteristics of employees.


Summary

1.  Have a written policy against discrimination, harassment and retaliation.  Have it signed by each employee and retained in their personnel file.

2.  Have a training course on the topic for staff.

3.  Understand that you cannot discriminate, harass or retaliate against any employee based on any “protected category.”

4.  Understand that there can be no joking about, commenting on, or discussing any personal characteristics of any employee and prohibit employees from doing the same.

5.  Consider employment practices liability insurance.

6.  Be consistent and fair with staff. 

7.  Act and speak in a manner that you would approve of seeing replayed on video in front of a jury.  Just remember that almost everyone has a video camera in their pocket.

8.  Hide any natural inclination toward favoritism you might harbor.  Favoring one employee often equals discrimination from the perspective of another employee.

9.  Hire cautiously and get legal advice prior to terminating bad employees.

10. Always set the proper example from the top.


Sample anti-harassment policy statement

“The [practice name] is an equal opportunity employer.  The employer will not discriminate and will take affirmative action measures to ensure against discrimination in employment, recruitment, advertisements for employment, compensation, termination, upgrading, promotions and other conditions of employment against any employee or job applicant on the bases of race, creed, color, national origin, or sex.

The [practice name] is committed to providing a workplace that is free from all forms of harassment and discrimination.  Any employee’s behavior that fits the definition of harassment and discrimination is a form of misconduct which may result in disciplinary action up to and including dismissal.

The practice’s policy on harassment and discrimination is part of its overall affirmative action efforts pursuant to federal and state laws prohibiting discrimination based on age, race, color, religion, national origin, citizenship status, unfavorable discharge from the military, marital status, disability and gender.

Each employee of this practice must refrain from harassment and discrimination in the workplace.  It is the responsibility of all supervisors and managers to make sure that the work environment is free from harassment and discrimination.  All forms of discrimination and conduct which can be considered harassing, coercive or disruptive, or which creates a hostile or offensive environment must be eliminated.  All employees, including supervisors and other management personnel, are expected and required to abide by this policy.  No person will be adversely affected in employment with the employer as a result of brining complaints of unlawful harassment.

If an employee feels that he or she has been harassed on the basis of his or her sex, race, national origin, ethnic background, or any other legally protected characteristic, they should immediately report the matter to his or her supervisor.  If that person is not available or if the employee feels it should be unproductive to inform that person, the employee should immediately contact the supervisor’s superior.  Once the matter has been reported, it will promptly investigate and any necessary corrective action will be taken when appropriate.  All complaints of unlawful harassment will be handled in as discreet and confidential a manner as is possible under the circumstances.

The procedure for reporting incidents of harassing behavior is not intended to impair, replace, or limit the right of any employee to seek a remedy under available state or federal law by immediately reporting the matter to the appropriate state or federal agency.

Any employee engaging in improper harassing behavior will be subject to disciplinary action, including the possible termination of employment.

All employees of this practice, particularly those in a supervisory or management capacity, are expected to become familiar with the contents of this policy and to abide by the requirements it establishes.

Prohibited harassment, disrespectful or unprofessional conduct includes, but is not limited to the following behavior:

  • Verbal conduct such as epithets, derogatory jokes or comments, slurs, or unwanted sexual advances, invitations or comments;
  • Visual displays such as derogatory and/or sexual oriented posters, photographs, cartoons, drawings or gestures;
  • Physical conduct including assault, unwanted touching, intentionally blocking normal movement or interfering with work because of sex, raced or any other protected basis;
  • Threats and demands to submit to sexual requests as a condition of continued employment, or to avoid some other loss, and offers of employment benefits in return for sexual favors;
  • Retaliation for reporting or threatening to report harassment; and
  • Communication via electronic media of any type that includes any harassing conduct that is prohibited by law or by practice policy.”


Employment practices