Most – if not all – employers are aware that both federal and state laws preclude employment discrimination based upon the race or national origin of an employee, and know that illegal activity can include both discriminatory actions and biased statements. Most employers, however, are unaware that certain of those laws also preclude discrimination by a customer, client, or patient of an employer against an employee.
Recently, a federal district court in Michigan denied a hospital/employer’s motion for summary judgment, finding that the lack of a written policy instructing hospital employees to reject the racial preference of patients regarding treatment, and the absence of training on the issue, raised a question that must be decided by a jury. McCrary v. Oakwood Healthcare, Inc., E.D. Mich., No. 4-14-cv-14053, March 16, 2016.
Caprice McCrary, an African-American female, is a respiratory therapist at Oakwood Hospital in Dearborn, Michigan. McCrary, who began working at the Hospital in 2013, typically works a 6:30 p.m. to 6:30 a.m. shift three days a week, and is rated as a “very good” and “hardworking” therapist who is qualified to do her job. She reports directly to Elisa Benscoter, the manager of the Respiratory Care Department; when Benscoter is not at the hospital, McCrary reports to a senior respiratory therapist or charge therapist.
On October 8, 2014, a patient was admitted to the Hospital through the Emergency Room. After he had been stabilized, the patient told a nurse-in-training that he wanted no “black people” tending to him during his hospital stay. The nurse left the patient’s room and reported the situation to a supervisor, who told her to note the statement in the patient’s record and to notify the charge nurse. The nurse noted the patient’s statement in the record, as directed.
At some point that same day, the patient was transferred into a hospital room on a floor on which McCrary was assigned to provide respiratory care. When McCrory entered the patient’s room to provide care, the patient asked her to leave, referencing the statement in his chart. When McCrory asked the treating nurse why the patient had acted as he had, the nurse told McCrory about the patient’s preference, as noted in the chart.
Later that night, McCrory again attempted to provide a respiratory treatment to the patient, and was again rebuffed. McCrory reported the situation to the senior respiratory therapist and to her own supervisor (Benscoter). She also called the Hospital’s human resources person, who apologized to McCrory and said that the request should not have been included in the patient’s chart.
Subsequently, the patient was told by the Hospital he could not preclude medical personnel from treating him, regardless of race, and McCrory was informed of the same. However, when McCrory returned to work the next day, the patient had been moved to a floor on which McCrory did not provide respiratory treatment to patients.
McCrory filed a lawsuit claiming race discrimination under Section 1981, contending that the Hospital violated that law by allowing the assignment of its employees to care for the patient based upon race. The Hospital moved for summary judgment, arguing that it had acted promptly to correct the situation, and that after they acted, the patient was treated by several African-American caregivers during his stay.
The district court denied the Hospital’s motion, pointing out that there was no written policy instructing Hospital employees to reject a patient’s request for care based on race, and no training or other advice to its employees on how to handle race-based requests. Based on the absence of the written policy and employee training, the court held that a “reasonable jury could find that by recording patients’ race-preference requests in the patients’ record and not training its employees to reject those requests, [the Hospital] purposely allows for the assignment of its employees’ duties based on their race.”
This decision underscores the importance of anti-discrimination policies, including those related to anti-discrimination by customers, clients, and patients. Those policies should be written, broadly disseminated, effectively implemented, and consistently enforced. In addition, training should be developed and conducted to assure the understanding and enforcement of the policies. Anything less than this muti-factor approach creates a clear risk of legal liability.