Customer Preference Not Justification for Discrimination

       Laws prohibiting discrimination trump patient preference regarding the race of health care providers, the Seventh Circuit recently ruled in Chaney v. Plainfield Healthcare Center, a case decided July 20, 2010. 

       Brenda Chaney, a black certified nursing assistant (CNA), sued her former employer nursing home where a resident in her unit demanded white-only health care providers. Each day CNAs received an assignment sheet, and each day that Chaney worked at Plainfield, hers contained this patient’s name and the note “Prefers No Black CNAs.” Because she was afraid of losing her job, Chaney followed the policy, even to the point of searching for a white CNA on one occasion when she found the patient on the ground, rather than assisting her immediately herself. There were at least two other residents who also refused to be assisted by black CNAs.

      In addition to being given the daily written instruction reminding her that she was not to assist a white resident because of her own race, Chaney was also subjected to racial comments and epithets by two co-workers. Three months after she was hired, Plainfield fired Chaney, claiming that she had used profanity in front of a resident, even though Chaney’s supervisor, who investigated the incident, was skeptical that the event had occurred. 

      Reversing the lower court’s order dismissing the case, the appeals court held that Plainfield’s policy created a racially hostile environment which violated Title VII when, on a daily basis, it reminded her that her terms of employment were different from those of other CNAs because of her race. The Court rejected Plainfield’s argument that as a long-term care facility, it was required to honor patient rights to select health care providers secured by Indiana state law, even if it meant violating Title VII. Even if Plainfield’s reading of the state law were correct, the Supremacy Clause dictates that federal law prevails. The sex discrimination permitted in health-care settings where gender may be a legitimate criterion for selecting providers, resting on a privacy interest (not undressing in front of a member of the opposite sex) is not similar to a request for a health care provider to violate Title VII.

      This case is a cautionary tale to employers in any “customer service” business that violating federal discrimination laws, including those prohibiting different terms of employment based on an employee’s race, color, national origin, age and, in many cases, gender in the name of “customer preference” can result in costly litigation and potential money damages.