EXECUTIVE SUMMARY

Six nursing assistants are suing a healthcare facility for allegedly catering to patient demands for only white caregivers. Dealing with such requests requires adherence to clear policies.

• Healthcare facilities must adhere to Title VII employment requirements.

• Employees can be reassigned for their own benefit, but do so carefully.

• Gender requests may be accepted more easily by the courts.


A healthcare center in Michigan is facing a lawsuit from six certified nursing assistants (CNAs) who say it harmed them by honoring patient demands for white-only caregivers, illustrating the difficulty of addressing these situations without running afoul of employment laws.

The CNAs are black and either currently or recently employed by Providence Healthcare and Rehabilitation Center in Zeeland, MI, which provides memory care, rehabilitation, retirement living, and assisted living to mostly senior citizens. The lawsuit filed with the U.S. District Court for the Western District of Michigan Southern Division alleges a pattern of racial discrimination over several years related to patient preferences.

Some residents asked that black employees not care for them, and those requests were honored in at least some cases, the lawsuit claims. The patient requests were even noted in the patient care plans, the complaint says.

When the plaintiffs were assigned to care for those patients, “they would be switched with a Caucasian employee, they would be told not to care for the patient,” the lawsuit says. “If they cared for the patients, they were called racist names by the patients who believed such requests were permissible because of [Providence Healthcare’s] failure to properly address.”

The lawsuit claims the six CNAs filed a formal complaint with the facility administrator but that he retaliated and made working conditions worse for them, while racial harassment from patients continued. They are suing for past and future wages related to being reassigned from these patients, compensation for mental and emotional distress, and punitive damages for violation of federal labor laws.

The facility’s corporate owner, Providence Life Services based in Tinley Park, IL, issued a statement saying it was not able to comment on the allegations due to the pending litigation except to say it does not modify staff assignments based on race.

Title VII Prohibits Discrimination

Local, state, and federal laws, most notably Title VII of the 1964 Civil Rights Act (CRA), prohibit employers from making any decisions about job assignments, promotions, or other terms of employment based on the person’s status in a protected category. The protected categories include race, gender, national origin, disability, age, and in some jurisdictions, sexual orientation. (For Healthcare Risk Management’s coverage of earlier cases involving racially discriminatory requests from patients, see story in September 2015 HRM at: https://bit.ly/2sLCRGb.)

These situations can be difficult for healthcare organizations trying to keep patients satisfied and avoid conflict with caregivers. Patients often ask for caregivers that make them more comfortable, and the request does not always concern race or other outright discrimination, notes Esra Hudson, JD, partner and chair of the labor and employment practice at the Manatt law firm in Los Angeles. Patients may ask for caregivers of one gender or another, for instance.

“Hospitals and other healthcare providers tend to try to accommodate those requests because there is a culture of accommodation generally regarding patient desires,” Hudson says. “But Title VII prohibits discrimination against employees on a number of criteria, and over time the courts have been clear that that includes customer preferences.”

With respect to patients, the courts have taken two different views, Hudson says. Some courts have said that accommodations for customer preferences are acceptable unless there is some sort of adverse employment effect, she says. Other courts have taken a different view, saying that the very act of accommodating the request is an adverse change to the conditions of employment.

“There’s a split in the way courts have handled this. For some protected categories there is a bona fide occupational qualification exemption under Title VII, so things like gender that relate to privacy are more viable patient accommodations you can give,” Hudson says. “When it comes to race there really isn’t a bona fide occupational qualification you can make, so when healthcare organizations accommodate those requests, they are creating risks. Courts will find that they are violating Title VII.”

Clear Policy Required

Any race-based accommodation is risky because the U.S. Equal Employment Opportunity Commission (EEOC) has made it so clear that race can never be an occupational qualification, says Joseph P. McConnell, JD, partner with the law firm of Morgan, Brown & Joy in Boston.

“When Title VII first came out, there were businesses that said their customers didn’t want people of a certain race serving them. But on race, ethnicity, or national origin, the EEOC has never seen that as defensible,” McConnell says. “If the issue is language there can be some overlap if the patient needs to communicate with someone who speaks their language, but that accommodation is not about the person’s race or ethnicity.”

Healthcare organizations must respond carefully when patients ask that particular employees or types of employees not provide care, says Christopher Metzler, PhD, chief growth officer and CEO of FHWFit, a global healthcare conglomerate in Washington, DC. There should be a uniform policy that such race-based requests are not honored, he says.

The rehab center in this case should have responded by saying, “We do not do that,” Metzler says.

He suggests that the patient contract include a statement saying such discriminatory requests will not be honored under any circumstances. Hudson says the policy could state that the organization does not discriminate against employees on the basis of any protected category under Title VII, including race.

Monitor for Abuse

But that doesn’t always end the matter.

“They then have to follow up. If they say no to the patient and let the employees treat the patient, the employer has an obligation to know what happens afterward,” Metzler says. “Are the patients calling the employees racist names and being abusive against them? The healthcare employer has to monitor that because state, federal, and local law prohibit discrimination of any kind in an employment situation.”

The risk manager must monitor the situation to ensure that the employees in question are not subjected to a hostile work environment, he explains.

Metzler cautions against focusing too much on the potential financial loss of losing a patient whose demands are not met. That loss must be weighed against the potential cost of an employee suing for discrimination, which will be much larger, he says.

Hudson says the overall approach to race-based requests should be to say no, but there might be exceptions. If a patient has dementia and cannot be reasoned with, for instance, it might be possible to accommodate the request if doing so results in no adverse results for the employee.

“That pattern in the courts has been against those providers who have a more general policy of accommodating patient requests even when doing so resulted in some adverse action against the employee — which is likely to happen if you try to accommodate everyone who makes this request,” Hudson says. “There may be cases in which you can look at the facts and determine that accommodating the request is the least harmful solution, but that is going to be true only in rare circumstances. Even then, you are opening yourself up to Title VII violation claims by making that choice.”

The courts see gender differently from race when it comes to patient requests, but accommodating those requests is not without risk.

“Courts are more willing to hear the argument for why patients might want to be cared for only by male or female caregivers, but it’s still a pretty high threshold,” McConnell says.

Healthcare employers can run into trouble even when responding to these requests with the best intentions, Metzler notes. Administrators may find the patient’s attitude detestable but still be reluctant to subject employees to offensive comments and emotional abuse, so it can be tempting to say “the patient is wrong, but we’ll reassign you for your own protection.”

That’s legally risky, following the 1996 class action lawsuit by the EEOC against Mitsubishi Motor Manufacturing of America. EEOC claimed that more than 300 women at the company’s Normal, IL, plant had been subject to sexual harassment starting in 1988, and that the company had denied some assignments to women ostensibly to protect them from the abuse they would face in those positions. Mitsubishi settled the case for $34 million. (For more information on the lawsuit, visit: https://bit.ly/2HqEbTT.)

“There used to be a philosophy that you wouldn’t promote women to certain positions in this all-boys club environment, but they found that doesn’t work, that it’s not your obligation to be paternalistic. It’s your obligation to stop the harassment,” Metzler says. “But I will tell you as a business owner myself, it’s a tough and hard call from a business standpoint. I don’t want to put my employees in a situation where they’re going to be abused, and in the case of patients I don’t have any control over their behavior as I would with employees.”

Metzler says it is possible to reassign caregivers to protect them from abusive patients, but only with important caveats. The reassignment must not negatively affect the employee in any way regarding pay, benefits, work schedules, or working conditions, and the employer must make clear why the employee is being reassigned.

This solution may be best when the employee has complained about abuse or disrespect from the patient, he says.

“You can explain that you’ve reviewed the complaint and you take it seriously, and this is a possible solution. The employee may be happy to move to another area, but he or she might also say no and want to stay in the same unit,” Metzler says. “But as long as they’re not losing anything and it’s not retaliatory, you can employ that reassignment as a risk management tool. You do have to be very cautious in the language you use to describe what you’re doing and why.”

Obligation to the Employee

The employer’s obligation in such a situation is always to the employee, not the patient, McConnell says. The first step should be telling the patient that he or she is not allowed to use discriminatory or abusive behavior toward the employee, he says. He had a case recently in which a schizophrenic patient in a group home used racially abusive language to an employee.

“We determined that the group home had to take affirmative steps to stop the person from making those statements, to tell them that it was not acceptable as part of the treatment plan,” he says. “The employer also explained the situation to the employee, that this behavior was a symptom of the patient’s mental illness but still not acceptable. They offered to put the employee in a different position that would have no detrimental effect on his employment.”

Hudson emphasizes that when an employee’s assignment is changed because of a patient’s request or abusive actions, the decision and the explanation to the employee must be documented carefully.

“The overall policy must be that you do not discriminate on the basis of race or other conditions under Title VII, so if there is a deviation from that policy — or what appears to be a deviation because you’re protecting your employee — you need to be able to show why you came to that decision,” she says.

SOURCES

• Esra Hudson, JD, Partner, Manatt, Los Angeles. Phone: (310) 312-4381. Email: ehudson@manatt.com.

• Joseph P. McConnell, JD, Partner, Morgan, Brown & Joy, Boston. Phone: (617) 788-5053. Email: jmcconnell@morganbrown.com.

• Christopher Metzler, PhD, Chief Growth Officer and CEO, FHWFit, Washington, DC. Website: http://drchristophermetzler.com.