3.3 Sexual Harassment Law and a Respectful Workplace
Key Takeaways
California Government Code § 12940(j) makes employers liable for harassment of employees by patients or vendors if the employer knew or should have known and failed to act immediately.
California employers with five or more employees must give supervisors two hours and nonsupervisory employees one hour of harassment training every two years (Government Code § 12950.1).
New California hires must receive harassment training within six months; seasonal or temporary workers within 30 days or 100 hours worked (Government Code § 12950.1).
California Civil Code § 51.9 creates liability for sexual harassment within a professional relationship, and it names dentists expressly.
ADA Code Section 3.F requires dentists to provide a workplace that supports respectful and collaborative relationships for everyone in oral health care.
Why a dental exam tests harassment law
The outline includes both a law task (T113, allegations of sexual harassment) and an ethics task (T213, promoting a respectful workplace). The dentist-owner is usually the employer, the supervisor, and the clinical leader all at once, so a failure to act on harassment can create liability and damage patient care.
FEHA: who is protected and who is liable
The Fair Employment and Housing Act (FEHA), Government Code § 12940(j), makes it unlawful to harass an employee, applicant, unpaid intern, volunteer, or contractor because of a protected characteristic. These include sex, gender, gender identity and expression, sexual orientation, race, religion, national origin, disability, medical condition, age, and others. For harassment, an "employer" is anyone who regularly employs one or more people, so even a solo dentist with one assistant is covered.
| Harasser | Employer's liability |
|---|---|
| Supervisor, including the dentist-owner | Employer is liable for the harassment |
| Coworker | Liable if the employer knew or should have known and failed to take immediate and appropriate corrective action |
| Nonemployee, such as a patient, vendor, or lab courier | Same knew-or-should-have-known test, considering the employer's control over the person |
Two other points matter:
- An employee who harasses is personally liable, whether or not the employer knew (§ 12940(j)(3)).
- Harassment does not require loss of a job benefit. A hostile environment is enough.
Section 12940(k) separately requires employers to take all reasonable steps to prevent discrimination and harassment. Section 12940(h) forbids retaliation against anyone who complains or helps an investigation. The Dental Practice Act adds that firing an employee mainly for trying to comply with the Act is unprofessional conduct (B&P § 1680(q)).
Prevention duties (K1131)
- Postings and information sheet: post the Civil Rights Department's discrimination poster, which covers sexual harassment, and its transgender rights poster, and distribute the harassment information sheet (Government Code § 12950).
- Training: employers with five or more employees must give two hours of interactive training to supervisors and one hour to nonsupervisory employees every two years. New employees need training within six months of hire, and new supervisors within six months of promotion. Seasonal or temporary workers hired for less than six months need training within 30 days or 100 hours, whichever comes first. The training must cover abusive conduct and harassment based on gender identity, gender expression, and sexual orientation (§ 12950.1).
- Response: take complaints seriously, investigate promptly and impartially, stop the conduct, and document what was done.
When the harasser is a patient
A patient who repeatedly makes sexual comments to a hygienist or touches an assistant is a nonemployee harasser. The practice must act once it knows. Reasonable steps include:
- Assigning a different team member or ensuring a chaperone is present.
- Warning the patient in writing that the conduct must stop.
- Dismissing the patient if it continues, following the abandonment rules: written notice, reasonable time to find another dentist, and emergency coverage in the meantime (B&P § 1680(u); see Chapter 11).
Saying "that's just how he is" is not a corrective action.
When the harasser is the dentist
Harassment of a patient is also covered. Civil Code § 51.9 makes a person liable for sexual harassment within a business, service, or professional relationship, and it names a "physician, psychotherapist, or dentist" expressly. Damages under Civil Code § 52(b) can include actual and exemplary damages. Any sexual abuse, misconduct, or relations with a patient is unprofessional conduct under B&P § 726 and § 1680(e). The ADA Code (Section 2.G) warns dentists to avoid relationships that could impair professional judgment or exploit a patient's trust.
The ethical side: a respectful workplace (T213)
The ADA Code, Section 3.F, says dentists have an obligation "to provide a workplace environment that supports respectful and collaborative relationships for all those involved in oral health care." Advisory Opinion 3.F.1 explains why: dentists lead the team, and disruptive behavior by the dentist undermines professional relationships, lowers the quality of care, and erodes public trust. The CDA Code lists tolerance of cultural and ethnic diversity as a core value.
Behaviors that fail this standard include berating assistants in front of patients, throwing instruments, mocking staff who raise safety concerns, or ignoring a hygienist's report that a patient is harassing her. Behaviors that meet it include clear protocols, calm correction in private, inviting any team member to "stop the line" over a safety issue, and treating complaints as information.
Handling a complaint step by step
- Protect the person who complained. Separate schedules or operatories if needed, without penalizing the person who reported.
- Investigate promptly and impartially. Interview the complainant, the accused, and witnesses, and review texts or messages. Someone other than the accused should lead the investigation.
- Decide and act. Match the response to the finding, from coaching and warnings to termination, or dismissal of a harassing patient.
- Document the complaint, the investigation, the conclusion, and the corrective action.
- Follow up with the complainant to confirm the conduct stopped and no retaliation occurred.
Tip
On exam questions, the best answer usually combines prompt action (stop the conduct and protect the target) with process (investigate, document, and avoid retaliation).
A patient repeatedly makes sexual remarks to a dental assistant, who reports it to the dentist-owner. The dentist does nothing because the patient pays in cash. Under FEHA, what is the dentist's exposure?
None, because FEHA covers only harassment by coworkers and supervisors
None, because the practice has fewer than five employees
Only the patient can be liable, and only in criminal court
The practice can be liable, because an employer who knows of harassment by a nonemployee and fails to take immediate corrective action is responsible
A dental practice has eight employees, two of them supervisors. What harassment training does California require?
Two hours for each supervisor and one hour for each nonsupervisory employee, repeated every two years
One hour for the dentist-owner only, once in a career
Training only if an employee files a complaint
Four hours for every employee each year
Which conduct by a dentist best fits the ADA Code's Section 3.F duty regarding the workplace?
Publicly criticizing staff mistakes in front of patients so everyone learns faster
Ignoring disputes between team members to avoid favoritism
Correcting an assistant's error privately and inviting any team member to raise safety concerns without fear of reprisal
Allowing only the dentist to speak about patient safety during procedures
Sections you finish are checked off in the contents.