A health care provider that relies on state laws relating to patient preferences to justify making race-based assignments may be creating a hostile work environment and subjecting itself to liability.

A Seventh Circuit panel of judges revived an employee's hostile work environment claim this week after her employer, a long-term nursing home, abided by a resident's request to be treated only by white nurses. The appellate court reversed a district court judge's ruling that the nursing home’s policy was justified because it had a good faith belief that ignoring the resident’s preferences would have violated state patient-rights laws.

In Chaney v. Plainfield Healthcare Center, No. 09-3661, a nursing home employer instructed its nurses that a resident "Prefers No Black CNAs," at the resident's request. The plaintiff, a black nurse’s aide who worked on the resident's unit, complied with the nursing home's policy, to the point where she reluctantly refrained from assisting the resident, even when she was the closest person able to respond. The nursing home maintained the policy because it believed that ignoring the resident's request would cause it to violate a state law that provided residents the right to "choose a personal attending physician and other providers of services."

After her employment was terminated for an alleged work violation, the nurse's aide filed a lawsuit against the nursing home, alleging, among other things, that the nursing home's policy, combined with multiple racial comments by co-workers over the course of three months, created a hostile work environment.

In reversing and remanding the district court’s decision to grant summary judgment in favor of the employer, the court first distinguished between same-sex preferences in the health care setting and racial preferences: "The privacy interest that is offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race." The court also rejected the nursing home's argument that its policy was necessary in order to comply with Indiana's regulation.  The broader application of the decision was the court's determination that Title VII, a federal law, trumped the state regulation giving residents the right to choose their health care provider if that law gave residents the right to make a racial preference.

The court also rejected the nursing home's defense that it risked exposing black employees to racial harassment by its residents if it did not accede to residents' preferences. The court suggested actions the nursing home could have taken on a practical level: warn residents of its nondiscrimination policy before admitting them, attempt to reform the resident's behavior, or advise its employees that they can ask for protection from racially harassing residents. Instead, the avenue chosen by the employer—excluding an employee from certain areas and residents solely on account of her race—created a racially charged workplace. 

If you have questions or concerns regarding the Chaney decision, please contact John B. Langel, 215.864.8227 or langel@ballardspahr.com; David S. Fryman, 215.864.8105 or fryman@ballardspahr.com; or any member of Ballard Spahr's Labor and Employment Group.

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