Accommodating Nursing Home Patients' Racial "Preferences" Violates Title VII
Usually it's a good thing when health care providers accommodate the wishes of their patients, but what happens when the patient says, "I don't want any black employees working on my case. I don't even want them in my room." In a recent case, Chaney v. Plainfield Healthcare Center (http://tinyurl.com/2g8kx8w), a nursing home was accommodating a patient's racial biases by prohibiting black assistants from entering the patient's room or providing her care. The accommodation of the patient's racial bias was explicit by way of an assignment sheet, which listed each resident and was provided to each employee upon arriving at work, that contained the notation "Prefers No Black CNAs" next to the particular patient's name.
The Seventh Circuit Court of Appeals deemed the assignment sheet to be an unambiguous and daily reminder to the employee who sued and her co-workers of the racial bias of certain residents and determined that the nursing home was fostering and engendering a racially charged environment.
The court distinguished gender preferences from racial preferences in this context. It emphasized that, although many courts have ruled that gender is a legitimate criterion for accommodating patients' privacy interests, such discrimination may not be extended to race. The court explained, "Just as the law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same-sex health providers, but not same race providers."
The rationale for this decision applies more broadly than just to nursing homes. Employers generally cannot abide by discriminatory preferences of their clients or customers. Even where the "client" was a patient, and the services provided were very intimate and personal to the patient, the law will not tolerate an employer fostering a racially discriminatory bias. In most other contexts, the law similarly will not tolerate an employer fostering a client's biases based on gender, religion, national origin, or age.
H-1B Compliance: The FDNS Site Visit
U.S. Citizenship and Immigration Services (USCIS), through its Office of Fraud Detection and National Security (FDNS), has implemented an on-site audit program that subjects H-1B employers to random site visits to verify information provided in H-1B petitions. The FDNS Web site is located via the USCIS Web site (www.uscis.gov) at http://tinyurl.com/3y3hnmh. FDNS's mission is to detect and deter immigration fraud as well as to make sure that benefits are not provided to anyone posing a threat to national security or public safety. According to USCIS, more than 14,000 H-1B site visits have been conducted so far during the fiscal year that began October 1, 2009.
FDNS site visits are unannounced. They take place at the employer's principal place of business and/or at the workplace location indicated on the H-1B visa petition filed with USCIS. FDNS uses these visits to verify information about the company and to confirm that the H-1B employee is actually working in compliance with the information provided in the visa petition, including hours, job duties, rate of pay, and education requirements.
During a typical site visit, the FDNS inspector will ask to speak to both a company representative, usually the individual who signed the visa petition for the company, and to the H-1B employee. The inspector also may interview other employees to further verify the information provided. Inspectors usually tour the workplace, take photos of the facilities, and review company documents such as payroll records and tax returns, to ensure that the business is bona fide. Although inspectors will not reschedule site visits to accommodate the presence of legal counsel, participation by telephone is permitted.
In addition to verifying compliance with the H-1B regulations, information gathered during the site visit is fed into the USCIS fraud detection database. USCIS uses this information to develop employer profiles and to review patterns and practices that could indicate fraud. FDNS refers suspected fraud cases to the U.S. Department of Labor or U.S. Immigration and Customs Enforcement, which may result in further investigation and the imposition of penalties or even criminal prosecution. http://www.ice.gov/pi/nr/0902/090212desmoines.htm.
H-1B employers should have action plans in place that employees can follow in the event of an unannounced FDNS audit. Any employees who may potentially be involved in the site visit should be made aware that this type of audit is possible. They should be advised of what the site visit involves and what actions they should take such as contacting counsel; requesting the name, title, and contact information of the site inspector; and accompanying the inspector at all times during the site visit. A confidential file containing a complete copy of all H-1B visa petitions filed by the company should be maintained for ready reference in the event of an audit. Some employers also may find it worthwhile to stage a mock FDNS site visit under the supervision of counsel to prepare employees for what to expect and how to respond.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
