What To Do When A Client Asks You To Discriminate

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By: Claudia D. Orr 

 

An employer recently prevailed in a lawsuit where its employee claimed it had violated Title VII and the Elliott-Larsen Civil Rights Act by honoring a request to not assign any African American caregivers to a patient. So does that mean this is a safe practice?  Absolutely not!  Let’s look at the Sixth Circuit’s ruling in Crane v Mary Free Bed Rehabilitation Hospital and try to make sense of its ruling.

Jill Crane, who is African American, began working for the hospital in 2008 as a nursing supervisor. In early December 2010, a white patient’s family asked that only white caregivers be assigned to the patient’s care. When she learned of this, Crane complained to the Director of Nursing.  Because Crane was part-time, she worked only one more shift during the remaining seven-day stay of the patient. In August 2012, Crane applied for Director of Education, a newly created position, but it was awarded to another employee who is white.

Crane filed suit against the hospital claiming that the hospital violated the civil rights laws by honoring the unlawful request, and that it denied her the Director position because of her race and in retaliation for her 2010 protected activity. When the federal District Court for the Western District of Michigan granted the hospital’s motion for summary judgment, Crane appealed.

On appeal, Crane argued that the district court erred when it ruled (1) Crane did not suffer an adverse employment action even if the hospital had honored the patient’s request (which the hospital denied); (2) there was no evidence of discrimination because Crane’s qualifications were not comparable to the white employee who received the Director position; and (3) Crane could not show a causal connection between her 2010 protected activity and not being awarded the position.

Let’s start with the two straightforward rulings.  The Sixth Circuit agreed with the district court that the successful candidate’s qualifications were objectively superior in material and relevant aspects.

The court also found that Crane failed to present evidence that the decision maker was aware of her prior protected activity. Mulhall v. Ashcroft, 287 F.3d 543, 554 (6th Cir. 2002) (“An employment decision cannot be caused by protected activity if the decision-maker did not know about the protected activity.”). One lesson here is to shield decision-makers from information that they don’t need whenever practicable (i.e., about disabilities, FMLA use, protected activity, etc.). Here is a practical point: Sometimes when an employee accuses his supervisor of creating a hostile work environment, it might make sense to assign him to a new supervisor to “protect” the employee from further harassment. Under such circumstances, the new supervisor should not be told of the prior complaint. That way, if the new supervisor eventually terminates the employee because of performance issues, for example, he will not be able to show it was in retaliation for the earlier complaint.

Now, turning to the request by the patient’s family, Crane argued that “the mere fact that assignments were made by [the hospital] on the basis of race, regardless of the impact on her personally, the hospital violated her rights.” (Emphasis added) Crane also argued that, “as a supervisor, she was responsible for all of the patients on her shift and denying her the right to care for a particular patient as needed was discriminatory even if she did not in fact have to care for that patient.”

The Sixth Circuit rejected Crane’s arguments, stating that “[n]ot every action taken by an employer that potentially affects an employee rises to the level of an adverse employment action.  Instead, a plaintiff must point to a materially adverse change in the terms or conditions of her employment. Examples of a materially adverse change include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or other indices that might be unique to a particular situation. At a minimum, the change in employment conditions must be more than an inconvenience or an alteration of job responsibilities.”  (Citations omitted)

“[T]he district court had found that an adverse action may be based on an employer’s race-based assignment of duties even without a change in pay, benefits, prestige, or responsibilities.  However, there was no adverse employment action in this case because…any impact on Crane was de minimis and temporary.” Crane only worked one more shift after the request, had no direct responsibility for caring for that patient, did not have to reassign any nurses and she was not reassigned.  Thus, Crane’s own work was not significantly impacted.

So, does this mean that employers may honor such requests with impunity?  No.  In fact, Crane cited several cases where African American employees were reassigned based on customer preferences but the Sixth Circuit distinguished them because those employees were actually reassigned (and affected for a longer period). In one such case, Chaney v. Plainfield Healthcare Center, 612 F.3d 908 (7th Cir. 2010), the employee claimed that honoring such requests created a hostile work environment. That employer tried to argue that, because of the patients’ requests, race was a “bona fide occupational qualification”. The court disagreed, noting that it is now well established “that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” The court distinguished basing such decisions on the employee’s sex which, depending on the circumstances, can be a bona fide occupational qualification. [Of course, you should always consult with an experienced employment attorney first before relying on this…]

In fact, the EEOC actively pursued such a claim against one local Michigan hospital after it allegedly prohibited black nurses from caring for a white baby at the request of its father. It was also reported that the hospital resolved the claims in 2013 and 2014 for over $260K.

Similarly, in a 2000 press release, the EEOC announced that it had sued a local staffing agency that was honoring the unlawful requests of its customers for “no females,” “no employees with accents,” “no Detroit residents,” etc. and had won a preliminary injunction against the company.  The EEOC’s General Counsel stated “Employers throughout Michigan and the country should be on notice that they cannot use employment agencies and referral companies to avoid the requirements of federal anti-discrimination laws.  We will seek preliminary injunctions and aggressively pursue litigation whenever we uncover such practices.”

So, employers, be on notice.  No good will come from honoring such requests even if an adverse employment action does not result. And, quite honestly, it’s just morally wrong.  When an unlawful request is made, the employer should refuse, even if this means losing the customer.

Taking this a step further, let’s assume an elderly white Alzheimer’s patient is not only refusing care by African American employees but also making highly offensive comments. Under such circumstances, the employer should not only tell the employees affected that the unlawful request will not be honored, but also ask the employees if they want to be reassigned since, given the patient’s medical condition, the abusive comments will likely continue. Remember, it is also an employer’s obligation to protect employees from hostile work environments.   It may not always be easy to do what is right, but is still right.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863.  http://www.plunkettcooney.com/people-105.html. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. January 2016.