Gender discrimination still an issue for women doctors

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.