Background
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, sex, religion, or national origin. In 1980, the Equal Employment Opportunity Commission (EEOC) ruled that sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act and in 1986, the Supreme Court, in Meritor Savings Bank v. Vinson, ruled that sexual harassment can be considered sex discrimination prohibited by Title VII. With this ruling, the court determined that speech in itself can create a hostile environment which violates the law. The Civil Rights Act of 1991 modified Title VII to add more protection against discrimination in the workplace and allows harassment and discrimination plaintiffs the right to a jury trial in federal court.
In May of 2018, the AAO published its policy that prohibits sexual harassment by staff, leaders, members and others attending Academy-sponsored events. Therefore, the Ethics Committee of the American Academy of Ophthalmology has determined there is sufficient precedent for a Rule of Ethics defining harassment and discrimination and its negative effects on patient care. The Academy Board of Trustees agreed, and in February 2019 approved a proposed Rule of Ethics 18. The Rule was approved by the membership in December 2019 and went into effect January 1, 2020. The Rule is as follows:
Rule of Ethics 18.
Harassment and Discrimination. Harassment and discrimination in the practice of ophthalmology are unethical. The ethical practice of ophthalmology creates and fosters an environment in which patients and all members of the health care team, including those in training, are treated with respect and tolerance. Harassment and discrimination of all types are likely to jeopardize patient care, exploit inequalities in status or power, and abuse the trust placed in us as ophthalmologists. Therefore, discrimination, harassment, or creation of a hostile working environment on the basis of personal attributes, including but not limited to sex, gender identity, sexual preference, race, disease, disability, age, or religion, is inconsistent with the ideals and principles of ethics in ophthalmology.
What is Harassment and Discrimination?
The Office of the Equal Employment Opportunity Commission states that sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. Title VII also protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion. It is unlawful to discriminate against any employee or applicant for employment because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. The American Academy of Ophthalmology believes that harassment and discrimination, as defined by Title VII, violate the Academy’s policy statement on diversity and are antithetical to its mission statement to “protect sight and empower lives by serving as an advocate for patients and the public, leading ophthalmic education, and advancing the profession of ophthalmology”.
Limitations of the Rule and the Submission Process
The Ethics Committee lacks subpoena power and cannot compel witnesses to testify; thus, we may not be able to resolve all challenges. Furthermore, the Academy does not have the resources to undertake a hearing for every Rule 18 challenge. Therefore, the Ethics Committee carefully screens each challenge and reserves the authority to decline or dismiss Rule 18 challenges in which we are unable to obtain sufficient evidence to resolve the challenge.
The primary purpose of the AAO Code of Ethics is to protect the individual patients. Issues of ethics in ophthalmology are best resolved by ensuring that the best interests of patients are served. With respect to harassment and discrimination having a negative effect on patient care, theoretical patient harm will not be considered as a catalyst for investigation; submitters must provide substantiation that claims of harassment and discrimination have impacted patient care or have a reasonable likelihood of doing so.
The Ethics Committee reserves the right to hold potentially valid and actionable challenges in abeyance until related legal proceedings or administrative proceedings have been finalized.
The Ethics Committee cannot review challenges concerning events occurring prior to the January 1, 2020 effective date of Rule 18. Moreover, even if presented with a finding of “guilt” or “probable cause” by another entity, per the Code of Ethics, the challenged member still has the right to present their defense to the Ethics Committee. A “ruling” by another entity will not, in and of itself, be determinative of the Ethics Committee decisions concerning any harassment or discrimination challenge.
Resources
Inquiries or challenges on this topic or others relating to Rules of the Code of Ethics may be submitted to:
Ethics Committee
American Academy of Ophthalmology
655 Beach Street
San Francisco, CA, 94109
For the full text of the Code of Ethics, visit https://www.aao.org/ethics-detail/code-of-ethics
For information about submissions to the Ethics Committee and for the downloadable submission form, use this link: https://www.aao.org/ethics-detail/how-to-submit
General questions may be posed to the Ethics Committee via ethics@aao.org.