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Barred from seeing female complaints without precedent


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Somewhat of a legal question here-

Without being too specific I work at a major University health service clinic.  I am a male for those who didnt know. The culture here has been that women see both male and female GU complaints, and men only see male GU complaints. When I started here I didnt want to lose this skillset, so I told them I am willing and able to see female GU complaints in my daily schedule. Lots of people were happy about it. The female docs thought it was wonderful. Very supportive. After lots of emails and informal meetings I started seeing them in my schedule. Not often, but maybe 1-3 a week. Routine stuff--mostly STI checks, vaginitis, etc.

We have a women's health clinic here in addition to the main clinic. All the female providers rotate through this clinic 1/2 day a week. I started asking to be part of this rotation; if I'm honest mainly to get out of working in the walk-in clinic so much, but also to maintain my skills and do more procedures.

So after about 9 months of campaigning and multi-level emails, they finally put me in the women's health clinic rotation. Just started.

Recently we have had a change in upper level management at the VP of the university level. I was told today by my boss (the clinic director) that there were strong words of admonition from the VPs that I (nor any other male, but I am the only one who does) am NOT allowed to see ANY female pelvic, breast, or sexual complaint under any circumstances. Obviously this is in response to the Larry Nasser/Michigan State scandal (no I am not at Michigan State) and more recently a long-time gynecologist at USC who got ousted for being a perv. Mind you I have NEVER had any complaints filed against me, formal or informal. I ALWAYS have a female staff chaperone on these visits.

Can they do this? Is this even legal? I may end up consulting legal services but it strikes me as not only sexist but discriminatory that they can carte blanche restrict my scope of practice (but not the female providers, they can still see male complaints) without any complaints filed against me or valid precedent. The word from the VP (second-hand) was if I dont like it I can "vote with my job" and leave. Any thoughts? Let it go or consult a lawyer....?

TL;DR: University where I work has informally barred me from seeing female complaints without precedent for political reasons. Can they do this? What would you do?

 

Edited by BruceBanner
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Interesting and a bit bizarre. As CJ said if you are at will they can set your conditions any way they please within the confines of the law. Discrimination based on gender? I think that would be a very easy argument to make. It is simply the standard across health care that we are professionals and see both genders for anything within our scope of practice. There are systems (chaperones etc) for that and the patient is free to opt out of being seen by a specific gender if they choose. Are they stopping male Ob-Gyn physicians from seeing female patients? Of course not.

That said you can only throw yourself on your sword once. If you make a fuss things may change but would you be a marked man or a crusader? Hard to say because administrators are like miniature politicians...they sway with the wind.

I think what you need is someone from the Women's Health Department/Ob-Gyn to take up the cause along with anyone else who shares your perspective.

Lawyer? You'd win but you would lose. Universities are very political organizations and I have seen some talented people ousted from long term positions for simply not going with the flow per leadership's point of view. 

One of my core philosophies is problem solve at the lowest level with the fewest number of people required.

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Thanks for the thoughts. I am going to get some "soft" legal advice and possibly talk to the head of the women's health department before anything else. Like you alluded to Sas, by making a stink out of it I think I'd become a marked man and be summarily canned---at which point I could have a wrongful termination and/or discrimination lawsuit---but it's not something I'm willing to be a martyr over. More the backwards leftist principle of it than anything else. 

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Gender discrimination is still illegal in most circumstances, regardless of whether your employment is "at will" or not.

Having said that, the law does allow for gender discrimination in some circumstances, and one of them is when the employee is working with people who expose intimate body parts -- a gym can refuse to hire a male as a women's locker room attendant, but not as the front desk receptionist. However, there is a certain burden on the employer to show that this is a patient preference. If the female patients don't mind a male provider then your employer doesn't really have a legal leg to stand on. To justify the different standards they would at least have to show that female patients were making demands for same-gender care in a way that male patients weren't, but even then, if there are enough female patients for you to work with that are willing to be seen by a male, and it's not incredibly difficult for your employer to work around this, they're legally obligated to do so.

As far as picking battles goes, you certainly run a risk of offending the wrong people whenever you complain, but you also have a certain amount of power in this situation because the law is (most likely) on your side. If anything, complaining ought to buy you a little added job security, since they'll be worried about a retaliation suit. Just make sure you keep records and put your requests in writing.

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Women are just as capable of inappropriate behavior as men and toward women or men.

By preventing you from seeing female gyn concerns - the University is saying men are not acceptable in that role and that is very wrong.

Female patients need to learn to trust providers - male or female.

Chaperones exist for a reason.

I have to have a male chaperone at the VA to examine male patients if disrobed. PERIOD - it is policy.

I have to have a female chaperone to examine a female vet at the VA for breast or pelvic exams.

All patients have the right to ask for a chaperone at any time.

The knee jerk reaction to prevent male providers from seeing females perpetuates the stereotype that men can't be trusted or women are more trustworthy in that setting. That is a load of crap.

The legal battle may be rough on you professionally but I applaud your willingness to stand up to a dumb decision.

My support is with you!

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To prevent males from seeing female parts but not females from seeing male parts seems overtly sexist. There really are just too many stories of female high school teachers having sex with boys at this point to have a lopsided policy regarding this issue. If you pressed them on this disparity, they might just fire you out of spite, particularly if they are doing this because it is easy, not because it is the right thing to do. I imagine they are aware they could use chaperones, but simply find this to be a cheaper option. If you complain, you may be forcing them into a more expensive policy, which they will never forgive. To find it necessary to suggest someone "leave" if they don't like it is a relatively hostile approach to take.

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If you were going to talk to a lawyer, it might not hurt to talk to the University's risk management lawyer.  Should be free, policy is blatantly discriminatory, and if you can't solve this at a low level, then you've got options of frontal assault, surrender, or letting someone else get your way.  A quiet word from the University's risk management folks might accomplish much.

Oh, also might mention that this is likely at Title IX issue as well; not just a state employment/nondiscrimination issue, but a legit federal case.

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So I was told by an attorney that it is in fact illegal, it violates Title VII. The sex of the clinician is not a bonafide occupational qualification. The proof of that, other than common sense, is that ACOG admits men. Also:

"Nor do customer or client preferences for one gender over another excuse an employer’s use of sex as an explicit criteria in employment decisions. 29 C.F.R. §1604.2(a)(1)(iii)"

So there you go. I'll let you all know how it plays out. I may consult private council just to see what the trajectory of this is. I was advised NOT to use university counsel, HR, or legal services. 

And to clarify, it's not about the exams. I'd like to keep the skill for employability reasons, but it's more the principle of them restricting my scope based on gender as a political avoidance mechanism.

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15 hours ago, Reality Check 2 said:

Women are just as capable of inappropriate behavior as men and toward women or men.

By preventing you from seeing female gyn concerns - the University is saying men are not acceptable in that role and that is very wrong.

Female patients need to learn to trust providers - male or female.

Chaperones exist for a reason.

I have to have a male chaperone at the VA to examine male patients if disrobed. PERIOD - it is policy.

I have to have a female chaperone to examine a female vet at the VA for breast or pelvic exams.

All patients have the right to ask for a chaperone at any time.

The knee jerk reaction to prevent male providers from seeing females perpetuates the stereotype that men can't be trusted or women are more trustworthy in that setting. That is a load of crap.

The legal battle may be rough on you professionally but I applaud your willingness to stand up to a dumb decision.

My support is with you!

females are just as capable of inappropriate behavior, but not as likely, there is a big difference.

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1 hour ago, Terrified said:

females are just as capable of inappropriate behavior, but not as likely, there is a big difference.

Men are less likely to report abuse though as well. I'd be scared of any policies that start discriminating based on findings related to broad things like gender, sexual orientation, race, religion etc. What if we were to find out tomorrow that [insert race, sexual orientation, religion here] are more likely to commit sexual assault? Do we not allow them to see certain patients based on that?  

Edited by d-wade
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4 hours ago, Terrified said:

females are just as capable of inappropriate behavior, but not as likely, there is a big difference.

I'm not sure I agree with this, mostly because of the use of "inappropriate behavior." From context one could assume you are referring to sexual behavior, but I also would still disagree.  It is a fact, just as d-wade mentioned, that men report abuse very rarely, and that is saying something when less than 20% of women report.

Now sexual assault resulting in rape or similar horrendous outcomes, yes, I agree that males commit that more often, and I would argue it is a difference of strength/body type - obviously not making it ok.  But I don't think it is true to assume women commit inappropriate behavior less often than men.

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5 hours ago, Terrified said:

females are just as capable of inappropriate behavior, but not as likely, there is a big difference.

Let us accept that this is true. However, our society is enormously risk adverse, especially in medicine. Is the difference here so great that the risk of inappropriate behavior by woman can ultimately be ignored? The employer here has decided yes, female providers do not need chaperones to see male genitals, however other employers have decided they do.

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"Risk averse" is not an excuse for unlawful discrimination.  There are some things that are demonstrably true that society has decided are not appropriate bases for risk assessment decisions.  Sex is one of them.  Race is another.  Can you imagine a clinic saying "White providers can see all patients, but black providers will be restricted to seeing black patients"?  Yeah, me either. The relative racial (or sex, or ethnic, or...) preponderance of criminality is not relevant to employment decisions, full stop.

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I'll switch jobs with you. I'd be perfectly happy if I never had to look in the bat cave again.

I once worked in an ER where a snarky pediatrician though he would hurt my feelings by trying to put a policy in place that PAs could not see children under 5. He was pretty astonished at the staff meeting when I tried to talk them up to nothing below age 18.

 

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14 hours ago, CJAdmission said:

I'll switch jobs with you. I'd be perfectly happy if I never had to look in the bat cave again.

I once worked in an ER where a snarky pediatrician though he would hurt my feelings by trying to put a policy in place that PAs could not see children under 5. He was pretty astonished at the staff meeting when I tried to talk them up to nothing below age 18.

 

we had an ER affiliated pediatrician who sent us EVERY kid he saw with a fever. I wish he would have seen ANY children. 

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5 minutes ago, EMEDPA said:

we had an ER affiliated pediatrician who sent us EVERY kid he saw with a fever. I wish he would have seen ANY children. 

Man, do I not know this.  Even in snot/cough clinic every tike (2 y/o >) that has a temp elevation is brought in to see us.  CC is "fever" (rarely has one in office) but then they throw in "oh, and their stomach hurts".  I kid you guys not, in a low acuity, low volume clinic, I've stumbled across THREE of these sons-of-guns with hot appys in the last three years when not even looking for it initially.  Not terribly impressive, doesn't look THAT ill, but I just went with my gut and sure enough I find out later that they're short an appendage.  I liked my old employee health gig where the age cut-off was 7 y/o where they could at least talk to you.

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