Can My Job Give In To Patients’ No Blacks Demands

Best Ohio Race Discrimination Attorney Answer: Can my boss change my work assignment because a racist patient doesn’t like black people? Can I sue my employer for not investigating race-charge incidents that I reported to HR? What kind of evidence can I use to support my racial discrimination case if I was fired today in retaliation for reporting I was called a “nigger” and “black bitch” at work?

I was watching one of my favorite television shows last night, Grey’s Anatomy. I have a sister, who is a nurse, and she constantly yells at me for watching that show. She always complains that it’s not realistic, and half the stuff that happens on that show would never happen in real life. Blah, blah, blah. I usually roll my eyes and keep watching because it’s one of my favorite shows to watch when I’m trying to relax. Of course, I tell her not to watch any of fake lawyers running around TV legal shows solving huge legal issues in an hour, and she rolls her eyes back at me.

The episode that I watched last night, was one of the few times where I could explain to my sister how realistic the show was. There was a scene where Dr. Cristina Chang, daughter of Korean immigrant, is told by a male white supremacist patient to “get away from me!” The moment was charged with racist energy and tension. The patient refused care from Dr. Chang, even though she is arguably the most qualified cardiac surgeon in the country. My sister and I discussed this scene. She’s familiar with incidents happening like this, where patients refuse care from a nurse or doctor for this reason or that. But, I got the rare chance to explain to her why hospitals can’t take patient racial preference into account when making employment decisions. Nerdy, I know, but it’s hard to turn off my employment lawyer brain. Our employment discrimination attorneys have blogged about this exact issue many times. (See Race Discrimination Lawyer’s Best Answer: Can My Job Discriminate Based On Customer Requests?; Does My Job Have To Stop Customers’ Racial Harassment Of Me At Work? I Need A Race Discrimination Lawyer Answer!; Race Discrimination: Customers Are Not Always Right). This time, I explained why this is illegal by telling my sister the tale of Brenda Chaney, which dealt with race discrimination in the same type of medical setting. Although the discrimination against Dr. Chang would have been because of her national origin as well, under Title VII of the Civil Rights Act of 1964, employees are protected from being discriminated against or retaliated against by their employers on the basis of race/color, religion, gender/sex, national origin, age, disability discrimination. (See: Can I Be Fired For Reporting Racial Discrimination?; Can I Sue My Co-Worker For Discrimination?; What Can I Do About Racist Customers?; How Do I Prove Race Discrimination Against My Boss?). Specifically, Title VII prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, based on an employee’s membership in a protected class. The same analysis for one protected class applies to all others.

Back to our employment discrimination example. Brenda Chaney was a nursing assistant (CNA) for the Plainfield Healthcare Center. The Plainfield Healthcare Center is a nursing home located in Indiana. Brenda is an African-American woman, who was trying to do her job as a CNA to the best of her abilities. Every day, Brenda would come in to work and look to the assignments sheet to see who she would be caring for that day. It came as a shock when one of the Patients, Marjorie Latshaw, had a note beside it that said, “Prefers No Black CNAs.”

That day, Brenda went along with the policy. Afterall, she didn’t want to get fired for trying to treat Marjorie. However, this restriction didn’t sit well with Brenda. Marjorie was technically a patient on her assignment sheet, but she could not assist her, even when she was in the best position to respond to Marjorie’s needs. For example, once, Brenda discovered Marjorie on the ground, too weak to stand. Despite Brenda’s deep desire, as a healthcare provider, to help Marjorie, Brenda had to turn around and quickly search the facility for a white CNA. Brenda routinely left work in tears because she could not give the best level of care to every patient assigned to her, solely because she was black.

Plainfield, as the employer, tried to explain that it expected its employees to respect the racial preferences of patients because it may risk violating state and federal laws that grant residents the right to choose healthcare providers. Plainfield routinely honored the racial preferences of residents, but as if that’s not bad enough, there was a work culture at Plainfield where racially-tinged comments and epithets from co-workers were prevalent.

Once, Brenda was in a treatment room with a patient and a white nurse aide called Brenda a “black bitch.” She was also called “nigger.” There were quite a few outrageous stories, like this incident. Brenda reported these incidents to her supervisor. Her supervisor was able to put a stop to the racial epithets from her co-workers, but they continued to remind Brenda that certain patients were “off-limits” to her because she was black.

One day, while Brenda was working, she was called to the room of a patient who needed help getting to the bathroom. A co-worker was also called to attend to the patient. When the co-worker and Brenda arrived at the room, they both initially refused to help the patient. After a moment of discussion, Brenda went into the room to help the patient in need. Brenda followed normal procedure and protocol to assist the woman who could not get to the restroom herself. Another nurse who was present lodged a complaint against Brenda regarding this incident. The co-worker claimed that Brenda had cussed when she was lifting the patient to go to the bathroom and was demeaning towards the patient.

The complaint made by the co-worker was investigated by Brenda’s supervisors. They were skeptical during their investigation because the behavior Brenda was accused of was out of character. Brenda had never cursed at work, let alone in front of a patient. When the supervisors asked the patient’s roommate, who witnessed the incident, if Brenda had cursed in front of the patient, the roommate said that she had not heard Brenda curse or use any profanity. The investigating supervisor reported to the Director of Nursing, John Reyes, that the complaint was not true, and that Brenda had followed protocol when helping this particular incident.

Almost unbelievably, less than 24-hours after the complaint was made, Reyes fired Brenda. Can you say wrongful termination? Certainly, Brenda thought she was wrongfully fired. Brenda had only worked at Plainfield for three months. Now, remember the other nurse in the room? The one who was also called to help the patient get to the bathroom but refused? Surely, if Brenda was fired regarding this incident, then the co-worker who refused to help would also be reprimanded, right? Nope. That nurse was investigated two weeks later and was not disciplined even though the resident who signaled the alarm was in her unit, not Brenda’s.

When Brenda asked why she was fired, the Human Resource manager responded that it was because she cussed in front of a patient. The HR manager didn’t give any other reason for her termination, smells fishy if you ask me. Luckily, Brenda thought it was fishy too, and sued Plainfield for race/color discrimination.

The lower courts held that Brenda didn’t prove her case of racial discrimination because she didn’t present enough evidence from which an inference could be drawn that racial animus motivated Reye’s decision to fire her. However, the Seventh Circuit Court of Appeals disagreed.

The United States Court of Appeals for the Seventh Circuit held that Brenda was a victim of a hostile work environment and suffered racial discrimination:

We have no trouble finding that a reasonable person would find Plainfield’s work environment hostile or abusive. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court emphasized the importance of considering the entire context of the workplace. 523 U.S. 75, 81 (1998). Here, over the course of three months, coworkers called Chaney a “black bitch” and a “nigger” on multiple occasions. Cf., Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993) (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as “nigger” by a supervisor in the presence of his subordinates.”) (citations omitted). And in her deposition, Chaney alleges that more subtle racial slights and comments continued even after management was notified of the problem. Most importantly, Plainfield acted to foster and engender a racially-charged environment through its assignment sheet that unambiguously, and daily, reminded Chaney and her co-workers that certain residents preferred no black CNAs. Unlike white aides, Chaney was restricted in the rooms she could enter, the care that she could provide, and the patients she could assist.

The employer’s biggest argument was that they were obligated to follow the racist wishes of its long-term nursing residents. The Seventh Circuit Court of Appeals was having absolutely none of this:

While it is true that Plainfield’s actions stopped the use of the most vulgar racial epithets, we cannot agree that any further comments to Chaney about patients’ racial preferences were innocent and objectively unoffensive. Nor can we agree that Plainfield’s policy of acceding to patient preference, and expecting Chaney to adhere to its instructions, was reasonable. Plainfield claims this policy was necessary to comply with state and federal law.

It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race. See, e.g., Johnson v. Zema Sys. Corp., 170 F.3d 734, 744 (7th Cir.1999) (evidence of segregated sales force supported Title VII claim); Ferrill v. The Parker Group, Inc., 168 F.3d 468, 477 (11th Cir.1999) (employer’s practice of assigning “get-out-the-vote” phone calls based on race violated Title VII); see also Fernandez v. Wynn Co., 653 F.2d 1273, 1276-77 (9th Cir.1981) (rejecting customer preference defense in sex discrimination context and relying on EEOC holding that Title VII does not permit the accommodation of the racially discriminatory policies of foreign nations). Plainfield argues that this well-settled reading of Title VII does not apply-or should not apply-in the long-term care setting. It contends that long-term care facilities have obligations to their clients that place them in a different position from most employers. …

Plainfield argues that even if Title VII does not expressly contemplate a patient-preference defense to race-based work assignments, Plainfield’s policy is a reasonable and good-faith effort to comply with Indiana law and should be excused on that basis. Under Indiana regulations governing long-term care facilities, residents have a right to “choose a personal attending physician and other providers of services.” 410 Ind. Admin. Code 16.2-3.1-3(n)(1). If Plainfield’s reading of the regulation (requiring it to instruct its employees to honor a patient’s racial preferences) were correct, it would conflict with Title VII. When two laws conflict, one state, one federal, the Supremacy Clause dictates that the federal law prevails. U.S. CONST. art. VI, cl. 2; Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). Had a resident sued Plainfield under the patient’s rights provision, Title VII would have supplied an affirmative defense. See Howlett v. Rose, 496 U.S. 356, 371-72 (1990); see also Grann v. City of Madison, 738 F.2d 786, 792 (7th Cir.1984). Title VII does not, by contrast, contain a good-faith “defense” that allows an employer to ignore the statute in favor of conflicting state law.

The Court also shut down Plainfield’s argument that their racial preference policy was there to protect black employees. Plainfield tried to clam that without their racial preference policy, Plainfield would be knowingly exposing black employees to racial harassment from the patients and, in turn, exposing itself to hostile workplace liability. I mean, honestly, this is a pretty scum-bag argument. The Seventh Circuit did not buy this argument at all. It explained that there were plenty of different methods that Plainfield can use to control patients and remind them of their non-discrimination policy. There are so many things that an employer can do to relieve themselves of workplace harassment liability but excluding employees from work areas and residents based solely on race is not one of them.

As to Brenda’s racial discrimination claim, the Court also held that the circumstantial evidence that Brenda presented was enough for her claim to survive summary judgment. Evidence that similarly situation employees outside the protected class received better treatment can help support a circumstantial showing of discrimination. Remember earlier when I told you that Brenda was called a “Black bitch” and “nigger” by a co-worker in front of a patient? That white co-worker wasn’t fired, but Brenda, when accused of the exact same (or arguably lesser) infraction, was fired. It is conduct like this that can help prove a race discrimination case against a former employer.

In this case, Brenda suffered a great deal at work. It’s important to note that this type of discrimination is unacceptable and happens everywhere. Although, nurses are near and dear to my heart, this type of protection extends to all employees. Bosses and supervisors can not use customer preferences as a way to discriminate against employees. It does not matter if certain clients do not want a male waiter, or they don’t want to be served by a Chinese-American. Your boss can not use customer preference to justify illegal behavior. At the end of the day, employment decisions should be made on the merits. It should come down to an employee’s work product, how hard they work, etc. It should never be based on whether their customers are racist.

If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation, you will meet with a race discrimination lawyer from The Spitz Law Firm who will help you determine the best way to pursue your legal claims. Call our Cincinnati attorneys at (513) 818-3688. Call our Cleveland attorneys at (216) 291-4744. Call our Columbus attorneys at (614) 335-4685. Call our Toledo attorneys at (419) 960-5926.

Disclaimer:

The materials available at the top of this race discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking or saying: “What should I do if my manager is calling me the n-word?”, “I’m being discriminated against at work”, “my boss is discriminating against me because I’m black” or “How do I file a claim for national origin discrimination and wrongful termination?”, your best option is to contact an Ohio attorney to obtain advice with respect to race discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.

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