Gender discrimination still an issue for women doctors

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted Oct. 8, 2007.

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It wasn't that Deborah L. Pierce, DO, didn't like being the associate residency director of the emergency medicine residency program at Philadelphia's Albert Einstein Medical Center. She did. Indeed, she had hoped to direct the program someday.

But with two young children at home, she was facing a dilemma all too common among female physicians: How best to balance career and family.

Managing a program of 44 residents while also performing clinical duties takes an extreme amount of time -- time she wasn't sure she wanted to devote to her career while her children were young.

The best solution, she decided, was to give up her administrative duties, but stay on at Einstein as a staff physician in the emergency department. Dr. Pierce scaled back her hours at Einstein in July 2004 and began working part time at Abington Emergency Physician Associates, P.C. in Abington, Pa.

In July 2005, she signed a full-time employment agreement at Abington and became an associate physician.

Now, slightly more than two years later, Dr. Pierce, 43, is back in Einstein Medical Center's ED. The U.S. Equal Employment Opportunity Commission has found that Abington discriminated against Dr. Pierce because she was female.

Dr. Pierce and the physician group are embroiled in contentious arbitration over the matter.

A question of equal treatment

According to EEOC documents, Dr. Pierce's employment agreement with Abington stated that she would become eligible for shareholder status on July 1, 2007. Six months before an associate physician's eligibility date, shareholders vote on whether to elevate the associate to shareholder.

In early November 2006, Kendel Kidwell, MD, Abington president, told Dr. Pierce that the shareholders had voted against her candidacy. Dr. Kidwell would not tell Dr. Pierce why she was refused, according to the documents. All of the male associate physicians who have become eligible for shareholder status have been elected, according to the EEOC. And Dr. Pierce had been led to believe she would be elected a shareholder when she became eligible, according to her attorneys.

On Nov. 20, 2006, Dr. Kidwell told Dr. Pierce that Abington felt she was better suited for practice in an academic environment and that she would be terminated when her contract expired on June 30, 2007, according to the EEOC complaint.

But male physician gets probation

Then in March of 2007, Abington's shareholders voted on the status of a male physician who had started three months after Dr. Pierce. The shareholders voted against granting him shareholder status as well. But instead of terminating him, as they had Dr. Pierce, shareholders voted to give him a nine-month probationary period and then vote again, according to the EEOC.

In response, Dr. Pierce filed the EEOC complaint.

In August, after investigating her complaint, the EEOC determined that Abington had violated Title VII of the Civil Rights Act of 1964, the federal statute that prohibits discrimination in the workplace. The EEOC concluded Dr. Pierce was not "afforded the same opportunity as her male counterpart to extend her contract and was instead discharged."

The EEOC investigator found that Abington claimed that Dr. Pierce was terminated for "low productivity and poor interaction with her co-workers." But the physician group could not produce any disciplinary records to back up those claims.

Instead, the investigator noted, Dr. Pierce received a satisfactory rating in her "ability to work well with others" on an October 2005 performance evaluation.

Dr. Pierce's attorneys, Jackie Woolley and Nancy Ezold, said the physician was aware that Abington had concerns about her productivity. But, they added, no one ever told her that if she didn't improve, her productivity would affect her shareholder status. Because Dr. Pierce is in arbitration, her attorneys would discuss only the contents of her complaint and the EEOC determination, which are public records.

While the EEOC found that Dr. Pierce had the lowest productivity among associate physicians, male physicians with consistently low productivity were not fired. Indeed, during the EEOC investigation, Abington said the male physician whom shareholders put on probation was initially rejected because of his productivity statistics and his method of providing medical services.

The EEOC said Abington admitted that it had no problem with the quality of care Dr. Pierce provided and that there was no evidence that she performed any worse than her male counterparts. The physician group also failed to provide a substantive explanation or evidence for why Dr. Pierce was not offered probation, according to the EEOC investigation.

Lastly, the EEOC noted, Dr. Pierce was replaced by a male associate physician, instead of a female who also was being considered for the same position.

Abington declined to comment on the EEOC findings.

Changes ahead?

Ezold said she sees this scenario, or some variation of it, all the time. "I have represented many other extraordinary, talented, experienced women who, when they become due to receive the fruits of their labor, suddenly they are no longer qualified."

Approximately 50% of medical students are now women, which theoretically should start to mean less gender discrimination.

Not necessarily, though, said Laurie Leader, a clinical professor, attorney and labor and employment law expert at Chicago-Kent College of Law. Leader doesn't expect an end to gender discrimination in her lifetime.

She said Title VII would be needed until there were enough jobs at certain levels to go around. "Until then people will use anything to get the upper hand, including gender," she said.

Leader said it is especially hard to quantify gender discrimination in physicians' practices because individual issues are addressed in individual contracts and the terms for each physician might be just a little different. That defeats commonality, which is required for any type of lawsuit, such as class action or pattern and practice, that aims to take on systemic gender discrimination. "The powers that be have been able to divide and conquer," Leader said.

Leader and Ezold said gender discrimination could be tamped down if women would band together. But that's easier said than done. "There is a lot to be said for women banding together, but I don't think it's going to happen," Leader said. "[Many women] are afraid of being branded or of being retaliated against."

Dr. Pierce did not file a retaliation charge with the EEOC. She already had been notified that she would be terminated when she filed. She served the remaining time on her contract, and Ezold said attempts to resolve the issue without entering into arbitration failed. She expects a hearing before an arbitrator from the American Health Lawyers Assn. Labor Arbitration Forum in February 2008.

The EEOC has left the case open and could chose to sue Abington on Dr. Pierce's behalf. Leader said there is case law that gives the EEOC the option to proceed with its case even if the person who made the discrimination charge is no longer involved.

But she said it's unlikely the EEOC will do so if there isn't a pattern and practice of the behavior, or isn't a hot issue that it wants to pursue.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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Updates: N.J. abortion; New York City menus

The May 8, 2006, "In the Courts" detailed a New Jersey appellate court's reasoning for allowing a woman to sue her physician for failing to provide informed consent because he did not tell her that a fetus was a "complete, separate, unique and irreplaceable human being" before she had an abortion.

Last month, the New Jersey Supreme Court overturned the appellate court's ruling in Acuna v. Turkish. Rose Acuna argued that Sheldon C. Turkish, MD, had a duty "to explain that the procedure would terminate the life of a living member of the species Homo sapiens, that is a human being." But the court unanimously refused, saying that they would not place a duty on doctors when there is no consensus in the medical community or society supporting Acuna's assertions that a 6- to 8-week-old-embryo, as a matter of biological fact, is a "complete, separate, unique and irreplaceable human being."

In addition, the court said it is not its place to set public policy. "On the profound issue of when life begins, this Court cannot drive public policy in one particular direction by the engine of the common law when the opposing sides, which represent so many of our citizens, are arrayed along a deep societal and philosophical divide," the court said.

And in a lawsuit analyzed in the Sept. 10, 2007, column, a federal judge granted the New York State Restaurant Assn.'s request that would forbid the New York City Health Dept. from enforcing a regulation requiring some restaurants to make calorie information available on their menu boards.

The restaurant association argued that the regulation was preempted by the federal Nutrition Labeling and Education Act, which also regulates how restaurants present nutritional information.

In friends-of-the-court briefs, several medical and public health organizations, including the American Medical Association, argued that obesity had become a public health crisis of epidemic proportions and that the New York City regulation was one method of fighting back.

In his ruling, Judge Richard J. Holwell of the U.S. District Court Southern District of New York, acknowledged that both sides had "attached voluminous affidavits, declarations, and exhibits" devoted to the wisdom of the regulation. But, he said, the issue before the court is not the regulation's wisdom, but whether the city has a legal right to govern the issue.

Holwell noted that a majority of state and local measures that simply require restaurants to provide nutritional information are not preempted. Where the New York regulation gets into trouble is that it applies only to restaurants that are already displaying the information voluntarily -- the same group of restaurants the federal labeling act targets.

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