Dentist gets hit for doing more that just flossing

While enrolled in the Bryman College dental assistant program, Candace Wahl was placed in an unpaid externship at Dash Point Family Dental Clinic. The clinic was co-owned and operated by Dr. Don S. Moore. Candace did well in her externship and received two (2) favorable written evaluations. According to the clinic’s office manager, Dr. Moore liked to work with her.

After completing her externship, she was hired by Dr. Moore’s clinic in a full time capacity. A few months after her hire, the doctor began to make inappropriate and sexually explicit comments to Candace. These comments included discussions about his wife’s preferences during sex, his physical attraction to Wahl’s mother (Wahl’s mother was a patient), comments about oral sex, his sex life and the size of his penis. In addition, the doctor would comment about the bodies of female patients and employees, including Wahl.

In the final months of her employment, the doctor’s sexual comments became more graphic. His office manager, testified that she heard the doctor’s comments. She also testified that Dr. Moore demanded that the office manager perform oral sex on him. He also asked the office manager to buy condoms so he could have sex with her on the conference room table. Apparently, this conduct caused the office manager to warn externs about Dr. Moore and describe him as a “pervert.”

Candace, like most young people in this circumstance, tried to ignore the doctor and just do her job, however, the doctor would not stop. On Monday, February 23, 2004, Dr. Moore told Ms. Wahl that he wanted her to watch him masturbate. Later that day, he asked her to accompany him to the darkroom so he could teach her how to duplicate patient films. While in the darkroom, Wahl could smell lotion and hear the doctor masturbating. The doctor also asked Wahl to stop what she was doing and turn around so he could “finish faster.” Wahl refused to turn around and told the doctor that what he was doing was wrong. This incident ended when Wahl’s wife, a dental hygenist at the clinic, knocked on the darkroom door. Wahl quit the following Monday. She would later report this to the police.

After Wahl quit, Dr. Moore instructed the office manager to write a letter denying any sexual misconduct occurred between the them, that is the doctor and the office manager. The doctor also directed the office manager to write letters of reprimand, back date them and place them in Wahl’s personnel file. The doctor would later admit to back dating the documents but claimed the letters accurately reflected violations of clinic policies.

At trial, the judge found Dr. Moore’s explanations not credible and felt that he fabricated events. The trial judge found that Wahl had been wrongfully discharged in violation of Washington’s public policy against gender discrimination. The appellate court agreed with the trial judge explaining that an employee can be terminated either expressly or constructively. An express termination is one where the employee is told, “You’re fired.” Here the court felt that Ms. Wahl was constructively terminated (also referred to as constructive discharge) in that the doctor “made working conditions so intolerable that a reasonable person would have felt compelled to resign.” The court also held that, as a small employer, one that does not fit the definition of an employer under Washington Law Against Discrimination (employers with 8 or more employees), Dash Point Family Dental Clinic could be held accountable under Washington’s common law. For those interested in reading more about the court’s reasoning, click here.

The Bottom Line: At one time, some employers felt, that since they did not employ 8 or more people, they were immune from laws protecting our citizens against discrimination. That is not the case. While an employee that brings suit against an employer with less than 8 people, may not have the same arsenal of tools available, as they would if their claim were brought under the Washington Law Against Discrimination, they still are able to vindicate their rights in court.

I think we can all agree that the doctor not only crossed the line but went way over into the next county. Dr. Moore was fortunate that Ms. Wahl had this trial in front of a judge since the result in front of a jury would probably have been far worse.

Employers, when an employee leaves use common sense.

First, conduct an exit interview. That way you define the basis for their departure and any potential claims that might be out there.

Second, never, did I say Never? Well I meant, NEVER!!! Never recreate documents or back date documents. That only creates suspicion. I know there are times when employers fail to document an event or complete a form. If you feel a need to document an employee’s “sins” following their departure, then do it in a memorandum form, after talking to your lawyer.

Employees, remember that you have the burden of proving an intolerable workplace in the event you contend you were constructively discharged. The law presumes that you quit unless you were fired or laid off. This is important because your unemployment benefits could be denied if you fail to prove constructive discharge and it could also impact the amount you will be able to recover in a later lawsuit.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal cases often turn on specific facts. Please do not use the information in this Blog as a substitute for sound legal advice given by an experienced legal professional.

Ohio Court rules private sex video not admissible

Kristina Conti, Emily Dutton and Shawna Smith worked for Spitzer Auto World. These employees alleged they were subjected to sexual harassment on nearly a daily basis. Ms. Conti alleged that two sales managers routinely viewed pornography on work computers and forced her to view pornography on a number of occasions that included acts of intercourse between men and women and women and women. Ms. Conti also alleged that a sales manager rubbed up against her and forced her to touch his buttocks. According to the employees, they were regularly queried about the type and color of their underwear, their private sex lives and their interest in different sexual positions.

At trial the employer convinced the trial judge to allow it to question Ms. Conti concerning a private sex tape made with her husband. The employer argued this evidence was admissible to show that Ms. Conti could not have been emotionally damaged by being forced to view pornography in the workplace. Ms. Conti was not allowed to present any evidence that the video was made by her husband without her consent or any other mitigating factors. After Conti lost at trial, she appealed.

The appellate court held that consensual sexual activities between a husband and wife cannot be used as a defense against sexual harassment which by definition is not consensual. The court felt the employer’s rationale would allow a complete stranger to pursue sexualized behavior toward a woman since she may consent to that type of behavior in the privacy of her home with her husband or significant other. As a result the appellate court felt Ms. Conti’s right to a fair trial was prejudiced and she was permitted to have a new trial, this time without the admission of evidence concerning her private activities with her husband which had no bearing on whether Ms. Conti was forced to view graphic pornography at work.

The Bottom Line: An employee cannot be sexually harassed if they have invited or consented to sexualized conduct. Here the employer was successful in convincing the trial judge to admit highly prejudicial evidence that had no bearing on the key inquiry of whether she was sexually harassed at work. The appellate court’s opinion may have been radically different had Ms. Conti shown the private home video to others, coworkers or otherwise publicized its existence.

This case also highlights that blatant sexual harassment continues in today’s workplace. Sometimes, given the attention that has been directed to sexual harassment over the past two decades, it is easy for human resources professionals to be lulled into a false sense of security that flagrant sexual harassment does not exist. Unfortunately, due to the ease with which sexually explicit material can be obtained, employers must be ever vigilant. Training on issues of sexual harassment, reporting procedures and proper use of company email and Internet access are a key component to minimizing an employer’s exposure. In addition, an environment must be created where employees and management are encouraged to report unwelcome conduct in the workplace.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.

It's not always what it seems....

Consider the following:

1. You receive an email accusing a male employee of a sexual relationship with a female co-worker.

2. Next you receive a package, bearing the return address of the female co-worker, that contains what are purported to be nude photographs of the male employee with his face obscured.

3. You learn that a website that promotes casual sex has an account for the male employee and contains what appear to be graphic sexual exchanges between the male employee and the female coworker. In addition, you also learn there a nude images of the male employee on that website.

Is this a case of sexual harassment? Is this the case of an employee that is conducting themselves in a fashion that could be detrimental to the image you expect your employees to maintain? Could it be something else?

This is part of what is alleged to have occurred in a case to be filed by King County Prosecutor’s Office. In that case it is alleged that a 50 year old female Oregon Tax Attorney engaged in identity theft and cyberstalking. The Prosecutor’s Office alleges she sent sexually explicit photographs to her ex-boyfriend’s employer and tried to frame him for sexual misconduct. (For more about this case, click here to read the article as reported by the Seattle P-I.)

I know you are in the position you currently you hold because you get jazzed by your line of work. If you would have wanted to be part of the cast of CSI Miami, you would have auditioned for a part. Never the less, this has been brought to your attention and now you have to do something. The signs all point, at a minimum, to the possibility of a sexual relationship existing between employees and poor judgment on the part of one or both employees. They also could be a sign of sexual harassment. Ignoring the problem could result in a sexual harassment lawsuit, the loss of a valuable employee, and damage your company’s image.

As the employer, you now have the duty to investigate. That does not mean jumping to conclusions but learning the facts from all the parties. As with any task, it requires advance planning. Here are 8 things you should consider before commencing an investigation:

1. Does the one of the parties require protection?

2. Will it be necessary to separate the parties during the course of the investigation?

3. Will confidentiality be an issue?

4. What are the company policies that apply? (If this is a sexual harassment case, then the company’s equal employment policy, sexual harassment policy, and anti-retaliation policy all come into play.)

5. What past precedent has been set by your company with similar matters?

6. How long will the investigation take?

7. Should a third party, such as an experienced employment law attorney or a human resources consultant, conduct the investigation?

8. What is the least intrusive way to conduct interviews?

Once these questions have been answered, you will be ready for the first step; interviewing the reporting party. More on that in a later post.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature. Nothing can substitute for a consultation with a legal professional who can address your particular legal problem.

Jury Award in Spanking Case Reversed

Many of you will remember the case. Janet Orlando sued her employer, Alarm One, due to the company's conduct during "team building" exercises. The company, allegedly, would pit sales teams against each other and the winning team was permitted to make fun of the losers, throw pies at them, feed the losers baby food, make them wear diapers and swat them on the buttocks. Ms. Orlando sued for sexual harassment and sexual battery. A jury found she suffered $500,000 in damage. In addition, the jury award $1 million in damages to punish her employer and deter future conduct. These type of damages are referred to as punitive damages. Alarm One appealed contending that the jury was not instructed on a key element of a sexual harassment claim, namely that the conduct was directed toward her because of her gender. The appeals court agreed and sent her case back to the trial court for a new trial. Click here to see the video interview of Ms. Orlando.

The Bottom Line: One word folks, "Hello!!!" I don't know enough about the evidence presented at trial to offer an opinion as to whether this conduct was directed at Ms. Orlando based on her gender. Never the less, if you are an employer that condones conduct in which an employee is humiliated or hit, you will find yourself getting "spanked" by a jury. Alarm One may have been successful in getting this case reversed due to an error in the jury instructions, however, it may find itself in the same predicament if this case is tried again. Even if a jury does not find this was sexual harassment, a jury could conclude that the conduct was an assault (battery) and/or that, by allowing employees to be treated in this fashion, the company engaged in intentional infliction of emotional distress. If this case arose in Washington, Ms. Orlando could have also sued the managers that allowed these practices to occur.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.