United States: The Patient Is Not Always Right: Discriminatory Staffing Requests Can Create Legal Exposure

Last Updated: February 10 2017
Article by David Amaya

Employer reports of bigoted or inappropriate comments made by customers to employees or other patrons have become increasingly common for employers in all industries. In the healthcare industry, this often takes the form of a patient requesting care from employees of a specific race or color. Honoring such discriminatory requests is a risky proposition. Failing to neutralize these situations may not only have a negative effect on workplace morale but could also lead to discrimination claims.

This article outlines recent court decisions involving race-based patient staffing requests and discrimination claims that resulted from honoring such requests. It concludes with recommendations on how best to proactively address these situations before they become public relations nightmares or legal headaches.

Don't Patients Have The Unfettered Right To Choose Who Cares For Them? 

The Emergency Medical Treatment and Active Labor Act, which requires any hospital accepting federal Medicare payments to screen, stabilize, and treat patients suffering from an emergency medical condition, also ensures that their patients have the right to refuse medical care if they so choose. Additionally, certain federal and state laws allow patients to access healthcare providers of their choice. 

While courts have routinely recognized these patient rights, they have also regularly rejected the notion that a patient's racial preferences could trump a healthcare employee's right to be free from discrimination in the workplace. 

One such court decision is the 2010 ruling in Chaney v. Plainfield Healthcare Center. In that case, the 7th Circuit Court of Appeals – which covers Indiana, Illinois, and Wisconsin – found that a long-term care facility violated the law by honoring the racial preferences of its residents when assigning healthcare providers. According to the facility's policy, black certified nursing assistants were barred from entering certain rooms, performing certain care, and assisting certain patients. The facility defended this policy by arguing it would otherwise risk violating state and federal laws granting residents the right to choose providers (along with the right to privacy and bodily autonomy), even if the patient's choice was based on race.

Brenda Chaney, a black nursing assistant, was forced to abide by the nursing home's policy even though the race-based limitations saddened her and she routinely left work teary-eyed. She worked at the nursing home for only three months before the healthcare center terminated her employment. She filed a federal lawsuit alleging discrimination and a hostile work environment, which eventually found its way to the federal appeals court.

The court ruled in Chaney's favor, rejecting the employer's attempt to have the case dismissed and clearing it for trial. In the years since the court's decision, it has been frequently cited by other courts around the country when addressing similar claims, and thus taken on additional significance.

While the decision provides significant restrictions when it comes to race-based decisions, the 7th Circuit Court of Appeals recognized that gender-based decisions may be permitted in the healthcare setting under certain circumstances. The Chaney decision cited to a long history of Title VII cases finding gender to be permissible as a legitimate, bona fide occupational qualification (BFOQ) if it accommodates a patient's privacy interests. Because there is greater legal support for gender-based patient preferences, you should feel much more confident accommodating such requests so long as they are grounded in privacy concerns.

What About A Temporary Race-Based Staffing Directive Resulting From A Patient's Threats? 

A recent body of law suggests that courts will likely not find a patient's threats adequate to justify what amounts to a "separate-but-equal" staffing policy. In July 2016, the Washington Supreme Court held that a state-run psychiatric hospital's temporary race-based staffing directive violated state antidiscrimination laws. 

The case involved a patient making credible threats against a black caregiver, including a statement that he was going to "f--- up any [n-word]" working with him. In response, the hospital made a temporary staffing decision preventing non-white employees from working in the patient's area of the facility over the course of one weekend. The Washington Supreme Court held this directive was unlawful regardless of its temporary and well-intentioned nature. 

Similarly, in Chaney, the 7th Circuit rejected the long-term care facility's argument that its policy was necessary to protect its employees from patient harassment and potential violence. Indeed, there appears to be no court that has condoned a discriminatory policy, even if motivated by a patient's threat.

What Can A Healthcare Provider Do?  

In light of the above cases, what can you do to limit your liability in similar scenarios? The first step is to adopt a written policy that makes clear your facility does not honor any patient staffing request that violates any applicable equal opportunity law. Lacking such a written policy may tilt the scales in favor of a discrimination finding should a former employee bring a lawsuit involving a patient's biased staffing request. 

A specific written policy is a good start, but solid preventative measures should not end there. Adequate training and communication will help ensure that employees who provide direct patient care can appropriately address these challenging situations. Factors to consider include:

  • whether to tell patients about your nondiscrimination policy prior to admission and how to do so;
  • how your employees should address a patient's discriminatory staffing request after admission; and
  • how to assign staff to patients using race-neutral criteria to minimize the risk of conflict.

Of course, no policy or practice can guarantee racial harmony, but it should be comforting to know that reasonable measures are available to avoid, or at least minimize liability in these situations. Courts from an array of jurisdictions have made clear they will expect you to take such efforts.   

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.