"Long-Term Care Providers Must Not Adopt Residents’ Racial Preferences"

by Laurie E. Martin, Hoover Hull LLP


Long-term care providers may violate federal anti-discrimination law if they have a policy of honoring their resident’s racial preferences in assigning health care providers. A recent opinion from the U.S. Court of Appeals for the Seventh Circuit, Chaney v. Plainfield Health Care Center, 612 F.3d 908 (7th Cir. 2010), found that a provider’s policy of acceding to the racial biases of its residents was an unlawful employment practice that, along with racial animosity from the plaintiff’s co-workers, created a hostile workplace in violation of Title VII of the Civil Rights Act of 1964.

Certain Plainfield residents refused assistance from black CNAs. Plainfield had a policy of honoring its resident’s racial preferences, citing state and federal laws granting residents the right to choose providers, to privacy, and to bodily autonomy. Accordingly, African American plaintiff Brenda Chaney’s daily assignment sheets stated in writing that one of her residents “Prefers No Black CNAs.”

Over the course of three months, co-workers referred to Chaney in derogatory racial terms on multiple occasions. She reported the comments to management, and the comments eventually stopped, but Plainfield’s racial preference policy remained in place.

Chaney was later terminated for using profanity in front of a resident, although Plainfield later claimed other reasons led to her discharge. The court cautioned that a shifting justification for an employment decision can be circumstantial evidence of an unlawful motive. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 723-34 (7th Cir. 2005).

The Seventh Circuit reversed summary judgment for Plainfield, finding that although Plainfield had acted to stop the racial epithets, it had actually encouraged a racially charged environment through its daily written assignment sheets reminding Chaney and her co-workers that certain residents preferred no black CNAs.

Chaney, 612 F.3d at 913-15. The court explained that, unlike gender, race is never a legitimate reason – a bona fide occupational qualification – for accommodating patients’ privacy interests. “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.” Id. at 913.

Finally, the court disagreed that an Indiana regulation which gives residents a right to “choose a personal attending physician and other providers of services,” (410 Ind. Admin. Code 16.2-3.1-3(n)(1)), required Plainfield to instruct its employees to accede to the racial preferences of its residents. The court suggested that the regulation may require Plainfield to allow the resident reasonable access to a white aide if she wished to employ one at her own expense, but that it did not trump Plainfield’s duty to its employees to abstain from race-based work assignments. Title VII contains no good faith defense permitting an employer to ignore federal mandates in favor of allegedly conflicting state law. Id. at 914.

The Court suggested several actions a long-term care provider could take to confront a hostile resident without exposing itself to hostile workplace liability:

• Warn residents before admission of the facility’s non-discrimination policy and secure the resident’s consent in writing.

• Attempt to reform the resident’s behavior after admission.

• Assign staff based on race-neutral criteria that minimize the risk of conflict.

• Advise employees that they can ask for protection from racially harassing residents.

Id. at 915 (citing Patrick Gavin & JoAnne Lax, When Residents and Family Harass Staff: The Tightrope between Regualtory Compliance, Risk Management and Employment Liability, LONG TERM CARE AND THE LAW 16-18 (Feb. 27, 2008) (American Health Lawyers Association, Seminar Materials.)

Employers can also seek to avoid liability under Title VII by enacting and consistently enforcing the following helpful practices:
• Establish a clear and effective anti-harassment policy

• Respond promptly to any complaints of harassment from employees.

• Provide clear and comprehensive reasons for discharge at termination.

• Seek clarification from the Indiana State Department of Health or legal counsel if a state regulation appears to require actions inconsistent with federal law.

Laurie E. Martin is an associate with Hoover Hull LLP. She represents employers, including long term care facilities and hospitals, in state and federal court and before administrative agencies on all employment and employee-benefit related matters including compliance with the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act, the Employee Retirement Income Security Act of 1974 (ERISA), the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), wage and hour disputes, wrongful discharge and blacklisting. Visit www.hooverhull.com or contact Laurie E. Martin directly at 317-822-4400, ext. 136, to discuss your employment-related needs.