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We posts blogs about recent developments in the law and to answer questions that our employment discrimination lawyers are asked about employee rights.  Very infrequently do we post blogs on complaints that are filed or accusations that are made – mostly because complaints do not make law and sometimes accusations are unfounded.  But sometimes a story catches my eye and I just cannot help myself from commenting.

This one comes courtesy of a CNN report of Tonya Battle, a black nurse, suing Hurley Medical Center, which is located in Flint, Michigan, based on violations of Title VII of the Civil Rights Act of 1964.  Battle made it through 25 years of nursing without a problem until she had the unfortunate luck to meet an unnamed racist dad (who was not named in the complaint likely due to HIPAA restriction).  Trying to instill all that is ugly in his kid right from the beginning, Racist Dad, according CNN, went to Battle’s supervisor, “showed her a tattoo that may have been ‘a swastika of some kind’ and told her that he didn’t want African-Americans involved in his baby’s care.”  First of all, I’m quite certain the conversation was not so civilized, and second, I’d bet a week’s wage that he didn’t use the term “African-Americans.”  I mean, that is not really a term in the vocabulary of a guy proudly showing off his swastika tattoo.

Of course, we all know the correct response that should have come from the nursing supervisor: “I’m sorry sir, we cannot concede to your racist request.  We treat all our employees equally.”  A close second place response: “Nurse Battle is a highly trained nurse of 25 years, your child will be in good hands.” Even the bronze medal answer should have worked: “I will pass your request on to management.”

And, this is where thing get a little kooky.  The nursing supervisor went with the bronze medals answer and deferred the decision on the obvious right answer to management.  Per the CNN article, “[t]he request, according to the lawsuit, made its way through management ranks, and was granted.”  This can’t be, I said to myself, as I started typing furiously into Google to see if I could find a copy of the complaint.

And, this is where thing got really kooky.  According to the Complaint, the nursing supervisor “met with the Director of Women and Children Services and Director of Nursing. A decision was made to grant the father’s request that no African American employees take care of the baby.”  Wow.  Three people and not one of them could stop the insanity.  Strike one.

Then, according to the complaint, a “staff meeting followed and was conducted by [the nursing supervisor] wherein she informed those present of the policy decision of Defendant Hurley Medical Center to not allow African American employees, like Plaintiff, be assigned to the care of this baby in the NICU.” They announced their discriminatory decision to the staff … no pretense, no pretext … just a verbal admission that they made employment decision based on race.  Strike two.

Making sure their racial discrimination was documented enough:  “A note made its way onto prominent spot on the baby’s medical chart, according to the suit: ‘Please, no African-American nurses to care for … baby per dad’s request.’” (Per CNN). Really, a polite racist note?!?  Okay, so now there is a smoking gun exhibit to enlarge for the jury.  Strike three.

A little too late, the Medical Center’s attorney catches wind of these unlawful discriminatory acts, and the note is removed and the Racist Dad told that the Medical Center could no longer honor his racist requests.  So now, everyone at the Medical Center knows that making the decision based on race is wrong. So obviously, their next step is to … wait for it … wait for it … make sure that no black nurses are assigned to Racist Dad’s kid for the next month. Now, they turn to pretext?!?  Strike four.

At the end of this, the Medical Center has no defense, assuming the facts are true.  It admittedly made race based employment decisions; admitted it verbally; documented  it in writing; and then continued the race-based discrimination once the attorney told them it was wrong.

Directly on point, the Seventh Circuit Court of Appeals decision in Chaney v. Plainfield Healthcare Center shows what I expect with happen will happen in Battle:

This case pits a health-care worker’s right to a non-discriminatory workplace against a patient’s demand for white-only health-care providers. … the racial preference policy violates Title VII by creating a hostile work environment … Most importantly, Plainfield acted to foster and engender a racially-charged environment through its assignment sheet that unambiguously, and daily, reminded Chaney and her co-workers that certain residents preferred no black CNAs. Unlike white aides, Chaney was restricted in the rooms she could enter, the care that she could provide, and the patients she could assist.

*     *     *

Plainfield argues there is no basis for employer liability because its response to the racial epithets was adequate in stopping the harassment and that any subsequent comments were mere reminders of a particular resident’s preference and not racially offensive. While it is true that Plainfield’s actions stopped the use of the most vulgar racial epithets, we cannot agree that any further comments to Chaney about patients’ racial preferences were innocent and objectively unoffensive. Nor can we agree that Plainfield’s policy of acceding to patient preference, and expecting Chaney to adhere to its instructions, was reasonable. Plainfield claims this policy was necessary to comply with state and federal law.

It is now widely accepted 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. See, e.g., Johnson v. Zema Sys. Corp., 170 F.3d 734, 744 (7th Cir.1999) (evidence of segregated sales force supported Title VII claim); Ferrill v. The Parker Group, Inc., 168 F.3d 468, 477 (11th Cir.1999) (employer’s practice of assigning “get-out-the-vote” phone calls based on race violated Title VII); see also Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981) (rejecting customer preference defense in sex discrimination context and relying on EEOC holding that Title VII does not permit the accommodation of the racially discriminatory policies of foreign nations).

[update: within 48 hours of the complaint being filed, the Medical Center realized the deep hole that it dug and settled the case.]

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