Set policies to address discrimination complaints

A column examining the ins and outs of contract issues

By Steven M. Harrisis a partner at McDonald Hopkins in Chicago concentrating on health care law and co-author of Medical Practice Divorce. He writes the "Contract Language" column. Posted Jan. 1, 2007.

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It seems as if every other call I receive these days is from a client telling me about a complaint charging his medical practice with some form of discrimination.

And with that complaint often comes a claim of retaliation -- that the employee who felt discriminated against also felt that those in the practice engaged in mistreatment because he or she filed the complaint or spoke up about something wrong in the practice.

One client who successfully fought a discrimination and retaliation complaint then asked how he could minimize the adverse effect of such claims. I advised him that the best strategy is to include an equal employment opportunity provision in the practice's employee handbook, or to create a stand-alone equal employment opportunity policy. That way, the practice could demonstrate a commitment against discrimination and retaliation. Also, it might allow complaints to be handled internally, rather than involving outsiders.

At the very least, every physician practice group should have an equal employment opportunity provision in its employee handbook. Here is an example:

"[Employer] provides equal opportunity for all employees and applicants for employment and makes all employment decisions without regard to race, religion, color, age, sex, national origin, disability or any other status protected by federal, state or local law."

Most employers find that the equal employment opportunity provision is not enough and therefore choose to create a policy stressing that the physician practice group prohibits any form of retaliation against any employee for filing, in good faith, a complaint under the equal employment opportunity policy, or for assisting in a complaint investigation.

This additional policy also would state that employees who are found to have engaged in retaliatory activity will be disciplined, up to and including termination.

On the flip side, the policy also should emphasize that if the complaint is not bona fide or not made in good faith or that an employee has provided false information regarding the complaint, disciplinary action could be taken against the individual who filed the complaint.

This preferred approach of creating a stand-alone equal employment opportunity policy emphasizes the physician practice group's dedication to deterring retaliation. This policy should trace the reporting, investigating and complaint procedures, requiring employees to report retaliatory conduct, providing several avenues for the report and promising a prompt, effective and results-oriented evaluation.

The language used in the policy and in the description of the reporting path in particular should be simple and easily understandable by the average employee.

Among other things, physician practice groups should consider adopting the following "best practices" for their own protection:

Create a hotline. Consider setting up a hotline and broadcasting the policy on an employer bulletin board or intranet site. Such mechanisms can help discourage employees from looking to report such misconduct outside the physician practice group, such as to enforcement agencies or the media.

Train supervisors and employees. All supervisory personnel need to be educated as to the basics of federal and state statutes prohibiting employment discrimination and harassment. Make certain they know and understand what constitutes retaliation, how to recognize retaliatory action and how the complaint procedure operates.

Employees should be advised of the complaint and reporting mechanisms that have been established. They need to be trained on how to use the mechanisms and encouraged to report misconduct and actual or threatened retaliation. Make certain that all employees have copies of the policy readily available to them.

Investigate retaliation complaints. Complaints of misconduct or retaliation must be investigated as promised -- promptly and effectively. The investigation should be conducted by neutral parties, whether they are inside or outside of the physician practice group. Investigations should be results-oriented and should conclude with disciplinary or corrective action when violations are found. Employee meetings and investigation steps should be diligently prepared with a stated purpose, outline of the substance of the meeting or step, and follow-up.

Document, document, document. Timely and accurate documentation of events and disciplinary measures is quite often the only evidence that helps an employer meet its burden of proving, by clear and convincing evidence, that an employee's protected activity did not trigger the adverse employment action on which a retaliation or whistle-blower claim is based.

And, don't forget to document the investigation (steps taken and not taken, meetings held, interviews conducted) and the reasons for any corrective or disciplinary action (or the absence thereof).

Follow up. With discrimination and retaliation/whistle-blower investigations alike, it is important that employers follow up with the complaining employee to discuss the outcome of the investigation and any corrective or disciplinary action that will result. The employee need not have a detailed explanation of every twist, turn and reason, but should have an understanding that the complaint prompted action and that the matter was taken seriously, just as any further complaints would be.

Employees who complain of misconduct of any type should be assumed to have engaged in protected activity. Any action taken against a complaining employee must be consistent with actions taken with other employees who have not filed internal or external claims.

Maintain the confidentiality of the process and its participants. Each policy and hotline explanation should guarantee that all complaints will be maintained as confidentially as possible to permit a meaningful and effective investigation and remedial action. These confidentiality obligations should be emphasized to supervisors and employees alike, and the employer should be sure that its internal files and procedures allow it to maintain the necessary confidences and confidential information.

If the discrimination and retaliation complaints go outside the practice, then a group must be ready to act. A group should have a public relations plan in place to handle adverse publicity. Before something happens, a group also might want to purchase additional insurance coverage to protect against financial hardship caused by retaliation claims.

And in any event, a practice should consult with its attorney to navigate potential trouble spots as a way to reduce any claims.

None of these "best practices" provides a one-size-fits-all solution to shield the physician practice group from all potential liability. Physicians must consider their workplaces and procedures on an individualized basis and must size up their workplaces to assure that shields designed for their particular needs have been crafted, implemented and consistently followed.

Steven M. Harris is a partner at McDonald Hopkins in Chicago concentrating on health care law and co-author of Medical Practice Divorce. He writes the "Contract Language" column.

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