Navigating employees’ charged behavior in the health care workplace

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As employers, it is unreasonable to expect that controversies outside the workplace will not intrude into it or to assume that employees will leave their opinions or biases at the door. Health care employers have the obligation to protect their employees and their patients, while also complying with applicable state and federal laws. At the same time, practices also want to make sure their reputations are preserved. These sometimes-competing obligations can put employers in a difficult position.

Recently, the headline-dominating and very emotional Israel-Hamas conflict has found its way into workplaces, including medical practices. Physicians and other staff members have been quick to take sides and many have not been reluctant to make their feelings known to others in person, in print, or via social media. Employers need to be aware of the legally-compliant steps to take in addressing the actions of their employees.

Be aware of laws pertaining to the workplace

There are numerous laws that govern workplace conduct, with the two most relevant to this issue being Title VII of the Civil Rights Act of 1964 and Section 7 of the National Labor Relations Act. Both of these laws may be implicated when employees seek to discuss – whether amongst themselves or with others outside the workplace – controversial issues such as the Israel-Hamas conflict.

Title VII prohibits discrimination against employees on the basis of, among other things, religion, race, and national origin, and also prohibits harassment on these bases as well. The Equal Employment Opportunity Commission, the federal agency responsible for receiving and investigating charges of discrimination, reported at the beginning of 2024 that they have received reports of an increase in employment discrimination complaints by Jewish, Muslim, and Arab employees, or from organizations who advocate on these groups’ behalf. (EEOC Watching for Workplace Bias Incited by Israel-Hamas War, Daily Labor Report, Jan. 8, 2024). To the extent that you learn of or observe conduct in your workplace that could rise to the level of discrimination or harassment based on such characteristics, you must take prompt action to stop such behavior and prevent such conduct from occurring in the future. Title VII also prohibits retaliation against those who make such a complaint, either to the EEOC or to their employer.

Section 7 of the National Labor Relations Act, which applies even to non-unionized workplaces, prohibits employers from retaliating against employees who engage in concerted activity relative to workplace conditions. Such situations include petitioning the employer to make a statement about the Israel-Hamas conflict or making complaints about out-of-the-office conduct of a manager or supervisor.

Have strong policies preventing discrimination and harassment and enforce them

Even without the prominence of the Israel-Hamas conflict in the news, every employer should have policies in place that prohibit discrimination and harassment, provide a complaint procedure for employees, and prohibit retaliation for making complaints. These policies should be made part of your practice handbook and should be included in any policy related to computer usage, social media and workplace conduct.Train all employees on these policies and emphasize that behaviors that violate them will not be tolerated. In addition, make sure any person in a managerial role is aware of their additional obligation to investigate and bring complaints to counsel or their superiors.

Should an employer receive a complaint of discrimination or harassment, on any protected basis, the law requires the employer to take prompt and effective remedial action; that is, the employer must prevent such conduct from happening again. That remedial action should include termination of employment of the offending employee, if the conduct warrants it, but can also include reprimand, suspension, training and other options based on the severity of the conduct involved.

Have strong policies that prevent hate speech, intimidation and discrimination

Dealing with employees is one thing, but what of patients who want to be assured of non-biased care and safe care when individuals affiliated with the practice make their personal opinions known?

As mentioned, employers should have clear social media policies that provide guidance to all employees and contractors about expectations related to their conduct inside and outside the workplace. This may require that individuals who choose to use social media make their accounts private or otherwise clarify that such accounts do not identify in any way the workplace of the employee or make reference to the healthcare practice. Violation of such policies should result in termination or discipline. Keeping in mind Section 7 of the National Labor Relations Act, discussed above, private sector employers can make employment decisions such as terminating an employee or rescinding a job offer for any reason and are not limited to the First Amendment except in a few states where there are specific laws that may protect online political speech of employees when not at work. Looking at a potential employee’s or contractor’s social media presence before making a job offer can be very instructive on whether such individual is a good fit for the practice based on any observed inappropriate content, including hate speech, promotion of violence or other similar propaganda. A regular review of an employee’s social media can also help employer’s stay on top of inappropriate postings which may violate the practice’s policies, the law or otherwise potentially harm the practice’s reputation.

Employees who share inappropriate text or emails with other staff or patients (i.e. graphics with violent propaganda or racist content), hang offensive or threatening items or images in the workplace, wear offensive clothing (i.e., shirt with threatening graphics) or make comments that cause others to feel uncomfortable or threatened, should also not be tolerated. Examples may also include offensive comments about patient jewelry or garb reflecting their religion, jokes or statements that clearly indicate a bias against a certain ethnic group, refusal to treat certain patients, or even derogatory comments about certain ethnic groups that can be overheard by patients or other employees. The impact of a healthcare worker’s hostile comments or treatment of particular patients or staff can hurt a practice’s business and reputation in the community, and put the practice at risk for violating the law. Patients are unlikely to want to seek care in a practice where a healthcare worker promotes hate or calls for the death of an ethnic group, whether or not the patient belongs to such group. Moreover, such mentality is not aligned with a healthcare worker’s or practices’ goal to provide high quality patient care to all.

On the flipside, patients do not have the right to treat health care employees improperly or to threaten, harass or act abusively on topics related to the Middle East, or any other issues. Such behavior should not be tolerated by a practice and employers must maintain policies to protect both their staff and other patients. Termination of a patient for inappropriate conduct is acceptable, subject to following the proper steps. In the case of an overt threat, contacting the police may also be appropriate.

There are many political issues that impact healthcare workers as individuals and humans in both our community and our country. Caring for patients, regardless of political beliefs, religion or nationality must always be the healthcare worker’s priority and the employer’s global message. Employers must create and support an environment where patients and employees feel welcome and are free from fear and mistreatment in order to avoid legal challenges and reputational harm.

Ericka L. Adler is a shareholder and manager of the Health Care group at Roetzel & Andress in Chicago, Illinois. She can be reached at eadler@ralaw.com. Karen D. Adinolfi is a shareholder in the Employment practice group at Roetzel & Andress in Akron, Ohio. She can be reached at kadinolfi@ralaw.com.