When faced with a sexual harassment investigation or complaint, a dentist should immediately seek experienced, knowledgeable counsel. The Dental Board of California (DBC) completes an extensive review process when complaints are filed against a dentist or dental assistant, and if the DBC Enforcement Program decides to conduct a further investigation or inspection, it can have dire consequences on your reputation and livelihood. The possibility exists that your license may be revoked. As such, victims should hire a Sexual Harassment Attorney who is an expert at the various aspects of Dental Board of California proceedings, as well as the many types of complaints that are brought before the Board regarding dentists, including:
- sexual harassment
- criminal activity
- and alcohol, drugs or controlled substance usage.
You spent years to obtain your professional license. Do not let false allegations of sexual harassment or other types of misconduct cost you the time and money that you have invested in your career.
It is illegal to operate without being licensed by the Dental Board of California, which is a division within the Department of Consumer Affairs. The Dental Board of California is the regulating, licensing, monitoring, and disciplining body of dental professionals and it investigates administrative and criminal violation. If a claim can be substantiated, it may lead to administrative or criminal prosecution.
In addition to the possible administrative punishments - citations, license reprimands, license probation, license suspension and license revocation - being accused of sexual harassment may lead to a host of criminal charges that will be enough to destroy your professional and social reputation, your career and your personal life. Your initial response to the allegations or inquiry will shape the entire investigation, so respectfully decline to answer any questions without your lawyer present. Also, do not agree to searches of your car, office or home unless the police can produce a valid warrant.
Possible Defenses for Sexual Harassment by Dentists and Dental Assistants
California's Business & Professional Code, § 1670.2 stipulates a three-year Statute of Limitations, unlike other states.
Most dentists would rather not even consider that sexual harassment occurs in their offices. They try to toe the line but are not aware of the many things that constitute sexual harassment towards dental assistants or patients. Likewise, many are unaware that they are responsible for the conduct of their dental assistants and other staff toward one another and toward their clients.
In recent years, sexual harassment - especially in the workplace - has been covered extensively in the media. People who have made recent accusations after many years of silence initially feared career derailment, job loss or retaliation. However, many of the complaints are not legally actionable.
California state law as well as federal law prohibit sexual harassment by employers and coworkers alike. The Fair Employment and Housing Act (FEHA) prohibits pervasive, severe unwelcome touching and verbal, or visual conduct with a sexual undertone. Pervasive harassment happens on a regular basis, or frequently enough to create a hostile environment. FEHA allows independent contractors and volunteers to bring sexual harassment claims, unlike Title VII of the Civil Rights Act of 1964. Therefore, FEHA affords employees more protection than Title VII does. For that reason, most cases are filed under the California's Fair Employment and Housing Act (FEHA). However, if someone is an employee rather than an independent contractor, they may bring a Title VII claim.
Title VII requires that the employee take certain steps to provide the harasser an opportunity to stop the behavior. The employee must complain to the company (coworker, HR department, or a manager). If the sexual harassment continues, the employee may file a complaint against the dentist or the dentist, the dental practice, or the individual harasser. As an employer, the dentist may be liable despite his or her own ignorance of the harassment, or attempts at remedying the situation.
California law includes the avoidable consequences doctrine, even though it is not a liability defense. In order to use the avoidable consequences defense, the dentists' lawyer must be able to show that:
- Reasonable steps were taken to correct that harassment that took place and avoid future incidents;
- The employee acted unreasonably in implementing the corrective and preventative measures;
- Implementing the procedures could have reasonably prevented some of the harm.
The avoidable consequences doctrine does not preclude a plaintiff's damages altogether, but it could potentially reduce it. The employer may be able to avoid liability for any harm incurred from the point at which the employer can prove that the victim could have ended the harassing conduct.
An employer will not be liable for any off-duty harassment of an employer by a supervisor, provided the plaintiff is unable to show an adequate connection that proves it was work-related. Therefore, the employer is not liable if:
- the relationship is completely private
- unconnected to the employment
- the sexual harassment occurs outside of the workplace
- and outside of working hours.
Although California laws allow for individual liability in harassment claims, it does not provide for individual liability in retaliation or discrimination cases, except possibly if the harasser is liable for retaliation that follows harassing conduct.
California law requires that the alleged harasser's behavior is unwelcome. Therefore, if mutual flirting later leads to a sexual harassment claim, ambiguity could be a potential defense, unless the alleged victim directly informed the harasser that the conduct is unwelcome or reported it to the practice's human resources department.
In many cases, a sexual harassment claim is nothing more than an attack on the dentist's good character and credibility. An experienced Sexual Harassment Attorney will use the resources at his or her disposal to conduct a thorough investigation into the alleged victim to include:
- a past criminal history, including restraining orders, theft, and violence;
- drug or alcohol problems, and mental health issues
- sexual misconduct and promiscuity;
- dishonesty in obtaining government benefits or money, welfare and tax fraud;
- past claims and lawsuits;
- and many other issues that could discredit the accuser.
What is Sexual Harassment by a Dentist / in a Dental Office?
There are several myths about sexual harassment, the most damaging being the fact that only a male employer in a position of power can harass a female who ranks lower than he does in the corporate hierarchy. In fact, sexual harassment can take place at many different levels:
- men can harass women and men
- women can harass men and women
- people can harass other people of the same sex
- employers can harass employees
- employees can harass one another
- dentists and their employees can harass their clients.
Furthermore, someone who is not even employed by the dentist can harass the dentist's assistants and employers, exposing the employer to sexual harassment suits and liability claims. This could include medical reps, delivery people or even patients who visit the practice.
Criteria for Sexual Harassment in a Dental Context
In order to qualify as sexual harassment, the behavior must be:
- of a sexual nature
- be pervasive or severe
- have a negative effect on working conditions or lead to a hostile work environment.
It can be hard to distinguish whether sexual conduct is welcome or unwelcome. Both parties may enjoy casual, mutual flirting, however, one party may become uncomfortable when the advances escalate.
Unwelcome behavior could vary from person-to-person and could include:
- offering sex in exchange for a work-related benefit (quid pro quo sexual harassment)
- repeatedly requesting dates and failing to take no for an answer
- making unnecessary physical contact
- making jokes or derogatory comments of a sexual nature
Some behaviors or comments may be misconstrued by the recipient, in which case an experienced Sexual Harassment Attorney can help you mount a strong defense.
DBC Investigation of Sexual Harassment by a Dentist
When a patient files a complaint with the Dental Board of California, the board may launch an investigation. However, not all investigations are initiated by patient complaints. Sometimes, an investigation may result from a criminal investigation, criminal conviction referral, or sting operation. The Investigations department will assign a Dental Board Investigator to schedule an interview with the dentist. These interviews are usually conducted at a field office.
Investigators from the Dental Board of California could be sworn peace officers or non-sworn investigators, who are tasked with investigating both administrative and criminal law violations. There are significant differences between the Due Process rights afforded to you in criminal law and administrative law.
As a dentist accused of sexual harassment, you may have your lawyer present during the interview. Through careful case examination, strategic preparation and experienced advocacy, your lawyer can help defend your license. Some of the elements of a dental license defense in a sexual harassment complaint include:
- requests for patient files
- medical privacy
- financial privacy
The Board may opt to close a complaint, or to issue a citation. If the Board finds evidence that the dentist acted unlawfully, the case will be referred to the Attorney General's Office, which will conduct an administrative prosecution. The Office will serve an accusation against the dentist, which could contain:
- an Accusation
- a Statement to Respondent
- a Notice of Defense
- and possibly other documents.
The formal Accusation serves to put the dentist on notice that the Board is considering license revocation. In most cases, the accused has only fifteen days to file a notice of defense. Failure to respond can lead to a default punishment on your license, which typically means that your license will be revoked. Your case will have to be defended at the Office of Administrative Hearings (OAH). Your lawyer can help defend your case in administrative hearings.
Office of Administrative Hearings locations are available in multiple locations across California, including Ventura, San Jose, San Francisco, San Diego, San Bernardino, Los Angeles, Riverside, Orange County, Bakersfield, and Sacramento. Administrative law hearings are heard by an Administrative Law Judge (ALJ) who will issue a decision (written Proposed Decision) within 30 days of the hearing.
The Dental Board may then accept, modify or even reject the decision of the Administrative Law Judge. Your attorney may recommend a Final Decision and Order appeal based on one of two rights, namely:
- California Government Code § 11521 - This section allows you to file a Petition for Reconsideration before the Final Decision and Order takes effect.
- California Code of Civil Procedure § 1094.5 - This section allows you to file a Petition for Writ of Mandamus in the Superior Court within thirty dates from the effective date of the Final Decision and Order.
However, dental license defense does not always have to result in a drawn out trial. You may be able to obtain a stipulated without going to trial. A properly structured defense can help secure a positive outcome even before the hearing is set to take place.
If your license has been revoked, your defense lawyer may be able to File for Reinstatement, if you are able to show factual evidence and compelling legal reasons that warrant reinstatement of your dental license. One of the key factors considered in a Petition for Reinstatement, is rehabilitation from past misconduct.
Help for Dentists Accused of Sexual Harassment
There are many ways in which an experienced Sexual Harassment Attorney can help you fight sexual harassment claims filed against you (the dentist), the practice and against individual employees accused of harassment. From consent to counterclaims, your lawyer can help you find the best resolutions, which could include a settlement and release agreement, workers compensation, and mitigation of damages.
If you are being investigated by the Dental Board of California, or suspect that an investigation is imminent, or if you are arrested or convicted and worry about the impact on your professional license, it is time to retain a lawyer.
Sexual Harassment Attorney can help defend your professional license from the Dental Board of California from being placed on probation, suspended or revoked. If you have an alcohol or drug problem, you may be able to enter the Dental Board of California's Diversion Program and in doing so, avoid disciplinary action.
Call Sexual Harassment Attorney 800-905-1856 if the Dental Board of California contacts you, of if you have reason to believe that a patient may be taking steps against you. An initial case review will help you to ascertain your rights and how one of our expert attorneys will be able to defend you.