Dealing proactively with office romances, family leave, and other common HR problems

September 15, 2007

Think of this legal expert's advice as your personal GPS for deftly navigating a maze of employment law challenges and preventing costly litigation.

Key Points

Could you be hauled into court on discrimination charges for selectively hiring female doctors and nurses? Or for your policies on family caregiving obligations? Are you invading an employee's privacy by instituting workplace dating policies or asking romantically involved staffers to sign "love contracts?"

Managing workplace relationships can be challenging. Besides dealing with different personalities and personal expectations or perceptions, the employer must also navigate a maze of employment laws. The challenges may be greater for the smaller practice because it typically lacks a well-staffed human resources department. This article explores some of the employment law challenges the small-to-midsize ob/gyn office frequently faces when it comes to employee relations, and it suggests ways to prevent disputes and costly litigation. We'll look at the specific areas of gender discrimination in hiring, medical leaves of absence, workplace harassment, and office romances.

Selective hiring

Given the intimate and sensitive personal care involved in obstetrics and gynecology services, courts have generally accepted that female patients may have legitimate privacy interests in having female doctors and nurses perform their gynecologic examinations. At issue, however, is whether being female is a bona fide occupational qualification (BFOQ) for ob nurses or staff. When a male applies for a vacant ob position, his right to equal employment opportunities must be balanced against the privacy rights of female patients. The privacy rights of patients, however, do not always win in all the courts.

In deciding whether a gender-exclusive hiring policy is justified as a BFOQ in an ob practice, employers must prove the following three requirements:

1. how the essence or central mission of the business would be undermined by hiring employees of both sexes;

2. the factual basis for the employer's belief that all or substantially all males could not perform the essential duties of the job position without intruding on legitimate privacy concerns of the patients; and

3. why alternatives to the female-only hiring policy would be impossible or impractical to achieve.

In a 2004 decision, the West Virginia Supreme Court of Appeals found in Slivka v Camden-Clark Memorial Hospital that the employer failed to submit sufficient evidence that male nurses could not perform the services safely and efficiently. The evidence the employer submitted included affidavits by a nurse manager and a doctor, but no affidavits by patients. The court held that because privacy interests are rooted in the beliefs and mores of individuals, the views of patients were important in deciding whether the employer satisfied the previously mentioned three-prong test.

Where patients themselves have articulated their preferences, it's easier to justify the hiring policy. In a 2000 decision in the case of Veleanu v Beth Israel Medical Center, the federal District Court for the Southern District of New York dismissed a male physician's claim of gender discrimination when the Medical Center accommodated female patients' requests for female ob/gyns. The court held that "health care presents unique circumstances that may justify reasonable efforts to accommodate a patient's expression of preference of doctor by gender, and that female patients may have legitimate privacy interest in seeking to have female doctors perform their gynecological examinations."

Accordingly, don't merely assume that patients' privacy interests will trump male applicants' right to equal employment opportunities. Patient views may differ in different parts of the country. Without supporting facts, such as written statements by patients, you may face a legal challenge to a female-only hiring policy.