By: Claudia D. Orr
It wasn’t that long ago that I wrote about a hospital that beat a discrimination claim after allegedly honoring an unlawful request for white only attendees because the employee had not suffered an adverse employment action. Crane v Mary Free Bed Rehabilitation Hospital. http://www.mishrmblog.org/2016/01/what-to-do-when-a-client-asks-you-to-discriminate/ Now, there is a case demonstrating one way a plaintiff may get around this dilemma.
The lawsuit involves a local hospital that allegedly prohibited an African American respiratory therapist from working with a white patient because he only wanted white caregivers. Specifically, a white patient came in through the Emergency Department with shortness of breath and a collapsed lung. The patient told his nurse (who was still in training) that he did not “want any black people taking care of him during his stay.” The nurse’s trainer told her to inform the charge nurse and put the statement in the patient’s medical records. The notation was made, but it was not noted whether the request would be honored. There is no written policy permitting or prohibiting the staff from honoring such requests.
The patient was transferred from the Emergency Department to one of the medical floors where the African American plaintiff was assigned to do a breathing treatment. The patient instructed her to leave his room and not to read his chart. The plaintiff summoned a nurse who went into the patient’s room and, when she came out, told the plaintiff it was because she was black. Plaintiff, being the only respiratory therapist on staff, made a note that she was not allowed to conduct the breathing treatment because she was black. The plaintiff was summoned again later that shift, and was again refused by the patient.
When management became involved, the patient was told his requests could not be honored. Plaintiff was then told the request should not have been honored and the notation should not have been in the chart. Management apologized to plaintiff and asked if she was afraid of the patient and, if so, they could assign someone else or have someone go in the room with her. She said she was not. However, when plaintiff went to treat the patient, she discovered he had been moved to another floor, presumably because he was to undergo surgery. The hospital has alleged that other African American employees worked with the patient before his discharge.
Under Title VII and the Elliott-Larsen Civil Rights Act (the state and federal civil rights laws), the facts above would not state a claim because one of the elements that a plaintiff has to prove is that she suffered an adverse employment action. An adverse employment action requires more than an inconvenience. It has to be a significant change in the terms of employment and, generally, something that affects the plaintiff economically such as a demotion or discharge.
Here, however, the plaintiff filed a claim not only under Elliott-Larson, but also under 42 USC § 1981. Section 1981 “prohibits intentional race discrimination in the making and enforcing of contracts involving both public and private actors. … The statute’s protection extends to ‘the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.’” Thus, even a temporary abridgement of plaintiff’s rights states a claim even without an adverse employment action.
The defendant hospital filed a motion for summary judgment which was heard by Judge Parker of the federal district court for the Eastern District of Michigan. The court found it significant that “[t]here is no written policy instructing [the hospital’s] employees to reject the racial preferences of its patients. [The hospital] also does not conduct any training or otherwise advise its employees on how to handle such race-based requests.” Moreover, while the patient’s request was written in the records, there was nothing to indicate the request would not be honored. Also, while the patient was presumably moved because he was to have surgery, he never did. Thus, there remained the question of whether that was the real reason for the move, or whether he was moved so that a different [white] therapist could attend his needs. The court denied the hospital’s motion, finding issues that the jury needed to resolve.
It is not clear how the Elliott-Larsen claim survived the motion. But what is clear is that employers providing services to the public (or temporary staffing agencies, which often receive such illegal requests) should have a policy that prohibits employees from honoring discriminatory requests and train their employees on how to correctly respond when faced with an unlawful request.
If your company needs assistance with drafting policies or training employees, you should consult with an experienced employment attorney, such as the author.
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 firstname.lastname@example.org 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. April 2016.