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Patients might object to particular nurses or other caregivers because of their race or other factors. Hospitals should be prepared to deal with such objections without violating labor laws.
Recent racial controversies have prompted some risk managers to wonder how to respond if a patient objects to the race, gender, religion, or sexual orientation of a caregiver. The situation is difficult, and labor law experts advise risk managers to step very carefully once the issue is raised.
The dilemma is arising more as healthcare employers hire a diverse staff, says Tom Harrington, JD, principal with The Employment Law Group in Los Angeles. The patient’s objection might involve the caregiver’s religious attire, such as a head scarf, or the person’s race or sexual orientation.
Conceding to the demands of the patient can put the hospital at risk of a discrimination claim by the employee, Harrington says. Even if the employer acknowledges that the action is taken only to mollify the patient and there is no endorsement of the discrimination, the employee still might suffer adverse consequences, he says.
“Even when the employer claims that the worker was not denied any hours or pay, and that the discrimination will not affect the employee’s status or opportunity for advancement, it still is an inherently untenable position,” Harrington says.
Patients do object to their caregivers with some regularity, according to researchers at the University of Michigan Health System, the University of Pennsylvania, and the University of Rochester. In 2010, they published the results of a study that confirmed what they called an open secret among healthcare workers: Patients frequently request providers of the same gender, race, or religion, and their requests often are accommodated.1
To study the “culture of accommodation” in the hospital setting, the researchers surveyed 127 emergency physicians from around the United States. Participants reported that patients often request a physician of a race, gender, or religion different from the one assigned, and the facility often complies, especially when the patient is a woman, a racial minority, or a Muslim.
Some requests are related to modesty issues, such as when a woman prefers to be examined by a female nurse or doctor, but the researchers found that black, Hispanic, and Asian patients sometimes believe that they receive better care from doctors of the same race. The decision on accommodation usually falls to the physician, and the study found that female physicians are more likely to say yes.
The 1964 Civil Rights Act (CRA) addresses various types of discrimination, and Title VII of the act prohibits employers from making any decisions about job assignments, promotions, or other terms of employment based on the person’s status in a protected category, Harrington says. Those protected categories include race, gender, national origin, disability, age, and, in some jurisdictions, sexual orientation.
“That would extend to customer preferences because, ultimately, if the employer gives in to the biased requests of their customers, they are making an assignment based on the discriminatory preferences of their customers,” he explains. “They would be ratifying the discriminatory preference and extending that to their employees.”
Employees might not even realize they have been discriminated against until some time later, but that situation does not mitigate the liability risk, Harrington says. Employees who find out after the fact that the hospital barred them specifically, or a person of their race, national origin, or other category, can make a claim that the discrimination adversely affected their job status.
“The question would be what the employee’s damages would be. They would have to prove that they suffered economically in some way from the discrimination,” Harrington says. “Even if you canvassed all your employees and got them to agree that it’s OK to allow the patient to be treated by who he or she chooses, it is still discrimination. Being able to prove that you discussed it openly and there were no objections at the time of the discrimination would not make a lot of difference later when one of those employees takes you to court.”
The bona fide occupational qualification (BFOQ) defense would be helpful only in limited circumstances, says Kimani Paul-Emile, JD, an associate professor of law at Fordham University School of Law in New York City. Title VII permits discrimination on the basis of “religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.” The BFOQ is usually not valid in regard to race discrimination, she explains, but it could be used in the small number of circumstances in which customer privacy is a concern.
“For example, although the BFOQ defense will not serve as a valid justification for an airline to hire only women as flight attendants to comply with male customer preferences, the privacy interests of psychiatric patients can justify a BFOQ for personal hygiene attendants of the same sex,” Paul-Emile says. “To this end, courts have held that for certain workers, such as nursing assistants, hospital delivery room nursing staff, and others involved in assisting individuals with dressing, disrobing, or bathing, gender may be a legitimate BFOQ for accommodating patients’ privacy or modesty interests.”
The most relevant case, however, indicates that race is unlikely to be considered a BFOQ, she says. In Chaney v. Plainfield Healthcare Center, the court addressed a situation in which a nursing home had agreed to a patient’s request to bar black nurses from her care. The court held that race is not a relevant factor to consider in addressing privacy concerns. (See the story in this issue for more on that case.)
Though instructive, the Chaney case is not a direct parallel to the most common scenarios involving racial requests, Paul-Emile says. The decision to accommodate a patient’s request is usually made by the treating physician rather than a hospital administrator, she explained in the UCLA Law Review. The different roles of physician and administrator are key, Paul-Emile said. (Her analysis of the case is available online at http://tinyurl.com/pwpr3bm.)
Accommodating the request can be seen as the physicians deciding among themselves how best to meet each patient’s needs, Paul-Emile explains, and courts generally give physicians wide latitude in that regard. Physicians’ willingness to accommodate is “likely due to the unique nature of the physician–patient relationship, which contrasts sharply with that of a CNA and nursing home resident,” she says.
Harrington says the advice for risk managers is clear.
“It would be a mistake to go along with the patient’s demands just to smooth things over,” Harrington says. “It would expose you to significant liability.”