ARTICLE FOR AUSTRALIAN PHYSIOTHERAPY ASSOCIATION

MARCH 2009

AUTHOR: DON GRANT

Sexual Discrimination and Harassment within the Physiotherapy Practice

One of the legal duties that a physiotherapist owes to job applicants, employees and patients is to ensure that discrimination does not occur within the physiotherapist’s practice.  If the physiotherapist fails to meet that responsibility then he or she may face a claim of discrimination before a Federal or State Anti-Discrimination body such as the Human Rights and Equal Opportunity Commission or Anti-Discrimination Board.  If the physiotherapist is an employer, he or she can be found liable for discrimination carried out by an employee. 

Generally, it is against the law for a physiotherapist (or any employee or agent of the physiotherapist) to discriminate against or harass job applicants, employees or patients on the basis of their sex, race, disability, age, carers’ responsibilities, pregnancy, marital status, homosexuality or transgender. This article will focus on discrimination on the grounds of sex and in particular, the growing area of sexual harassment.

What is Sexual Harassment? 

In terms of anti-discrimination law, sexual harassment is any form of sexually related behaviour that an employee, job applicant, or patient:

• does not want; and
• in the circumstances, a reasonable person would have expected would offend, humiliate or intimidate them.

Sexual harassment is illegal under both Commonwealth and State law.  If the harassment is proven, the harasser may face not only statutory fines but also a disciplinary complaint before a State Physiotherapists Registration Board.

Depending on the circumstances, each of the following kinds of behaviour may be found to be sexual harassment: 

• material displayed in the work or staff areas that is, sexist, sexually explicit, homophobic etc;
• verbal abuse or comments that put down or stereotype people because of their sex, pregnancy, marital status, homosexuality or transgender;
• ignoring, isolating or segregating a person or group because of their sex, homosexuality, transgender etc;
• jokes based on sex, pregnancy, marital status, homosexuality, transgender etc; 
• staring or leering in a sexual manner;
• sexual or physical contact such as slapping, pinching, massaging, kissing or touching;
• intrusive questions about sexual activity;
• sexual assault (this is also a criminal act).

Australian Physiotherapy Association Code of Conduct, and Standards for Physiotherapy Practices

In addition to legal duties, physiotherapists also hold professional ethical obligations to ensure that discrimination and harassment do not occur within the physiotherapist’s practice.  These obligations, amongst others, are set out in the Australian Physiotherapy Association (APA) Code of Conduct.  Relevantly, the Code sets out as follows with respect to APA members:

• Members must respect the rights, needs and dignity of all individuals;
• Members shall not deny people access to physiotherapy on the basis of age, gender, ethnicity, beliefs, sexual preferences or health status;
• Members shall not exploit (sexually or otherwise) their professional relationships with clients;
• Members shall not be associated or involved with conduct which may bring the physiotherapy profession into disrepute and shall make reasonable efforts to refer evidence of such conduct to the relevant authorities; and
• Members shall not exploit or abuse colleagues, students or physiotherapy assistants during supervision or mentoring.

All of the principles in the APA Code of Conduct are binding on all APA members.

The APA Standards for Physiotherapy Practices reinforce the ethical obligations on physiotherapists to ensure that the physiotherapist’s practice is an environment free of both sexual and other discrimination and sexual harassment.

The complete Code of Conduct and the Standards for Physiotherapy Practices can be found on the APA website at www.physiotherapy.asn.au.

Vicarious Liability and How to Avoid it

It is important to note that if the physiotherapist is the owner of the business, he or she will be legally liable for any unlawful discrimination or harassment that happens in connection with work, or the physiotherapy services or goods provided – unless the owner can show that he or she did everything they could reasonably do to prevent the discrimination or harassment from happening.

So if you are a business owner, you need to make it very clear to all those who work for you that you will not tolerate any unlawful discrimination or harassment of any job applicant, employee or patient.  Your employees also need to understand exactly what you mean by this – that is, exactly how you expect them to make decisions and behave generally.

If you want to avoid being responsible for the unlawful action of the employee who actually caused the problem, you will need to establish that at the time of the alleged discrimination or harassment, you had:

• an easily understood, written anti-discrimination/harassment policy distributed to all of your employees;
• a workable and fair written grievance/complaint handling procedure distributed to all your employees; and
• regular face to face discussion with your employees about what the policies and procedures mean and how they must follow them.

Some Practical Examples

Unfortunately, sexual discrimination and harassment does occur within the physiotherapist practice setting and physiotherapists are often surprised when advised that they can be found vicariously liable for the unlawful acts of employees.  What follows are some practical examples of possible sexual discrimination – do you recognise any of them? 

• The physiotherapy practice advertises a position for a receptionist.  A male applies with suitable qualifications and experience.  He is told that the practice would prefer a female receptionist. 
• A male physiotherapist within a practice approaches a female employee for a date.  She declines.  He continues to ask her out and show her special attention which embarrasses her to the point where she dislikes coming to work. 
• A sexually explicit/offensive calendar is hung in the staff room “as a joke”.  It offends an employee who complains to the owner of the business.  He or she tells the employee to “try and fit in a bit more” and takes no further action. 

In conclusion, we urge all physiotherapists to take steps to ensure that sexual harassment does not occur within the practice and if you are the owner of the practice, ensure that you have a written anti-discrimination and sexual harassment policy and complaints process.  Failure to do so could leave you exposed to a finding of discrimination, financial penalty and disciplinary proceedings.  For your consideration we would direct your attention to the Australian Human Rights and Equal Opportunity Commission website (www.hreoc.gov.au) for examples of such policies.