As anyone who works in an industry that is customer service based will tell you, sometimes the customer isn’t always rights. Our employment discrimination lawyers have blogged about the Tonya Battle case, where a hospital gave into the racial prejudices of a patient; and the Waffle House server who was told by her manager that she was lucky to have a job when she complained about racial harassment from some customers. Unfortunately, some employers still don’t learn (they should be reading our blog more often).
As the Plainfield Healthcare Center nursing home found out, that giving into the racial bias of the customer leads employers down the road of violating Title VII of the Civil Rights Act of 1964. Nursing home residents often have a wide range of preferences, and nursing homes will often do what they can to make their residents feel comfortable. But, sometimes there should be a line that should not be crossed.
In the case of Chaney v. Plainfield Healthcare Center, Brenda Chaney was an African American female who had been hired by the nursing home as a certified nurse’s aide (CNA). As a CNA, Chaney was responsible for monitoring patients, responding to their requests for service, and generally assisting with their daily living needs. The nursing home detailed Chaney’s daily shift duties on an assignment sheet that she and other employees received upon arriving at work. The assignment sheet listed the residents in Chaney’s unit and their corresponding care needs. It also featured a column with miscellaneous notes about each resident’s condition. In the case of Marjorie Latshaw, a resident in Chaney’s unit, the sheet instructed nurse aides that Latshaw “Prefers No Black CNA’s.” Latshaw was not the nursing home’s only racist resident, as the nursing home housed at least two other residents with a similar distaste for black CNAs. Additionally, the nursing homes practice of honoring the racial preferences of residents was often accompanied by racially-tinged comments and epithets from co-workers.
As a result, Chaney was not allowed to assist Latshaw or these other residents, even when she was in the best position to do so. Once, Chaney found Latshaw on the ground, too weak to stand. Despite wanting badly to help, Chaney had to search the building for a white CNA. These limitations, based on nothing more than Chaney’s race, often left her emotionally drained.
Later, Chaney was fired after a racist resident complained that she had used profanity in her presence. Chaney denied the allegations, and another resident who witnessed the incident stated that the allegations were untrue. Nonetheless, the nursing home stood by its decision.
Chaney later sued the nursing home, alleging nursing home’s practice of acceding to the racial biases of its residents was illegal and created a hostile work environment, and further, that she was wrongfully terminated based on her race.
At trial, the nursing home admitted it had a policy of honoring the racial preferences of its residents in assigning health-care providers, but argued that it expected its employees to respect these racial preferences because it otherwise risked violating state and federal laws that grant residents the rights to choose providers, to privacy, and to bodily autonomy. Clearly, this is a bogus argument that no court would accept in these modern times, right? But, the District Court agreed with this lame defense, and granted the nursing home’s motion for summary judgment and dismissed the racial discrimination and wrongful termination claims. (This in itself should be a warning that no case – no matter how great the evidence – is guaranteed, and that there are risks when relying on fallible judges and juries).
As you would expect, Chaney appealed, and the Seventh Circuit Court of Appeals, who clearly had a better grasp of the law, reversed the District Court, finding that “we have no trouble finding that a reasonable person would find Chaney’s work environment hostile or abusive.” Further, the court noted that by honoring its residents racial preferences, the nursing home had 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. The Court concluded that it was unreasonable for the nursing home to honor these preferences, and that the nursing home could held liable for doing so. Specifically, the Seventh Circuit held:
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 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). Plainfield argues that this well-settled reading of Title VII does not apply-or should not apply-in the long-term care setting. It contends that long-term care facilities have obligations to their clients that place them in a different position from most employers. Plainfield is both a medical provider and a permanent home for hundreds of residents. The rights of those residents are secured by federal and state laws and a vast network of regulations that, according to Plainfield, it must honor before considering its Title VII obligations to its employees.
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The regulations merely require Plainfield to allow residents access to health-care providers of their choice. 410 Ind. Admin. Code 16.2-3.1-3(n)(1). If a racially-biased resident wishes to employ at her own expense a white aide, Indiana law may require Plainfield to allow the resident reasonable access to that aide. But the regulations do not say that a patient’s preference for white aides that Plainfield employs trumps Plainfield’s duty to its employees to abstain from race-based work assignments.
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Plainfield’s next argument that the racial preference policy was required under federal law is also not persuasive. Plainfield relies primarily on three sections of the Medicare Act. The first, 42 U.S.C. § 1395, states that “Nothing in this subchapter” shall interfere with the practice of medicine. “[T]his subchapter” refers to the Medicare Act, not, as Plainfield suggests, the federal employment-rights law. Similarly off the mark is Plainfield’s reliance on 42 U.S.C. § 1395a. That provision merely reminds Medicare beneficiaries that federal law does not preclude them from using providers that have opted out of Medicare. Finally, Plainfield relies on 42 U.S.C. § 1395i, which provides that Medicare beneficiaries in long-term care facilities have a right to choose “a personal attending physician.” The law is silent about a beneficiary’s right to choose other service providers, such as CNAs. Moreover, as with the Indiana regulation, even if the law extended to other service providers, it would merely require Plainfield to allow residents access to them, rather than obligate Plainfield to institute race-based work practices.
Plainfield also defends the racial preference policy on a practical level: without it, Plainfield risks exposing black employees to racial harassment from the residents and, in turn, exposing itself to hostile workplace liability. It adds, without providing authority, that discharging a racially hostile resident to avoid exposing employees to the resident is illegal. But without resorting to discharging residents, a long-term care facility confronted with a hostile resident has a range of options. It can warn residents before admitting them of the facility’s nondiscrimination policy, securing the resident’s consent in writing; it can attempt to reform the resident’s behavior after admission; and it can assign staff based on race-neutral criteria that minimize the risk of conflict. See Patrick Gavin & JoAnne Lax, When Residents and Family Harass Staff: The Tightrope between Regulatory Compliance, Risk Management and Employment Liability, Long Term Care and the Law 16-18 (Feb. 27, 2008) (American Health Lawyers Association, Seminar Materials). Plainfield could have, for instance, advised its employees that they could ask for protection from racially harassing residents. That way, Plainfield would not be imposing an unwanted, race-conscious work limitation on its black employees; rather, it would be allowing all employees to work in a race-neutral, non-harassing work environment, as is commonly expected of employers. Cf. Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 636 (7th Cir.2009); Herron v. DaimlerChrysler Corp., 388 F.3d 293, 302 (7th Cir.2005). And even if all these efforts do not guarantee full racial harmony, they exemplify reasonable measures that an employer can undertake to avoid liability for known workplace harassment. See, e.g., Cooper-Shut v. Visteon Automotive Sys., 361 F.3d 421, 426 (7th Cir .2004).
Plainfield, however, chose none of these options. Instead, Plainfield told Chaney that it was excluding her from work areas and residents solely on account of her race, thereby creating a racially-charged workplace that poisoned the work environment.
The takeaway from this case is that unlawful discrimination is never okay in the workplace- even if it originates with the customer. As the Chaney Court held, employers can be held liable for acceding to or accommodating their customer’s racial preferences.
If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with an attorney from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims.
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