Seyfarth Synopsis: In the world of healthcare, providers are aware that competent patients have the right to refuse medical care, including treatment provided by an unwanted physician, nurse, or staff member. Healthcare employers are also aware that both federal and state laws preclude employment discrimination based on the race, national origin or other protected class. But what happens when a patient's treatment request contradicts an antidiscrimination law?
Many employers are not aware that the same laws protecting employees from employment discrimination by a healthcare provider may also prohibit discrimination by a customer, client, or patient of the employer against an employee. Indeed, physicians and other healthcare workers have employment rights that must be balanced with patients' rights. Employees of healthcare institutions have the right to a workplace free from discrimination based on race, color, religion, sex, and national origin, according to Title VII of the Civil Rights Act of 1964. Organizations that make race-based staffing decisions or compel employees to accede to a patient's request for reassignment on the basis of a worker's protected class may violate Title VII.
Employed medical professionals, including physicians, nurses and other care providers may pursue discrimination cases where their employers require employees to accommodate race or other protected class reassignment demands by patients. One such case made it all the way to the Supreme Court for review.
Recent Cases
Crane v. Mary Free Bed Rehabilitation Hospital, No. 15-1358 (6th Cir. December 11, 2015) asks the question head on: is Title VII violated where a nursing supervisor has been excluded from providing care or direction concerning care to a patient based solely on her race? Ms. Crane, an African-American employed as a part-time nursing supervisor, was allegedly informed that a "Caucasian patient's family had requested that no African-American caregivers provide care for the patient." Ms. Crane claimed that this was a form of racial discrimination. The District Court and Court of Appeals for the Sixth Circuit disagreed with Ms. Crane. They reasoned that no aspect of Ms. Crane's employment changed in any way because of the request, and, therefore, there was no adverse action sufficient to invoke Title VII protection. Ms. Crane sought review by the Supreme Court. Read more about our analysis of Crane's case here.
McCrary v. Oakwood Healthcare, Inc., No. CV 14-14053, 2016 WL 1046890 (E.D. Mich. Mar. 16, 2016) is another recent case – one which will move forward. In October 2014, a patient was admitted to the hospital through the emergency room. After he had been stabilized, the patient told a nurse-in-training that he wanted no "black people" tending to him during his hospital stay. The plaintiff, an African-American employed as a respiratory therapist, attempted to treat the patient multiple times, but was told that because of documentation in the patient's chart about preference, she should not do so. Eventually, human resources became involved and the patient was told by the hospital that he could not prevent medical personnel from treating him based on race and the plaintiff was also informed that this occurred. However, when the plaintiff returned to work the next day, the patient had been moved to a floor on which she did not provide respiratory treatment to patients. Plaintiff filed a lawsuit claiming race discrimination, and a federal district court in Michigan recently denied the hospital's motion for summary judgment. Based on the absence of a written policy and employee training, the court held that by recording the race-based requests of a patient, a reasonable jury could find that employees had not been trained to reject those requests, and purposely allowed for the assignment of its employees' duties based on their race.
For Ms. Crane, the road will end as the Supreme Court recently decided it will not hear her case. We are left with the Sixth Circuit finding that the situation was a one-time occurrence; the outcome of which might have been different if Ms. Crane had in fact had her duties changed because of the request. But for Ms. McCrary, her case moves forward on the reliance of a lack of anti-discrimination policies – including those related to anti-discrimination by patients – and not just reassignment of duties.
Takeaways
Hospitals and other institutional providers have their own factors to consider when responding to race-based requests. Competent patients have the right to refuse medical care, but the reality is that a healthcare setting may not be able to cater to such requests without opening itself to some legal liability. Healthcare providers also need to be cognizant of countervailing regulatory requirements, such as EMTALA, requiring them to provide medical treatment to patients or risk other sorts of claims. These two cases are a good reminder that health care providers should have written policies and periodic training to directly address the issue of patient preferences that may discriminate against the institution's employees. Policies that explain how requests of this nature are to be addressed will help the institution to limit claims from both its employees and its patients.
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