Aug 25, 2010

Can a Nursing Home Honor Resident's Request for White-Only Staff?

Did you think the answer was an obvious "no"? Me too, but apparently an Indiana nursing home and a federal district court judge felt otherwise. The judge threw out the race discrimination case an African American certified nursing assistant (Brenda Chaney) filed against a nursing home (Plainfield Healthcare Center), despite the facts that (1) Chaney was admittedly barred from providing assistance to nursing home residents who requested "white-only" care; (2) coworkers referred to Chaney as a "black bitch" and used the N word in front of her; and (3) the basis and process for her firing were suspicious, even to Chaney's supervisor. If this isn't enough even to get a case in front of a jury, I don't know what is. The federal Court of Appeals for the Seventh Circuit felt likewise, and reinstated Chaney's case.

Statistics show that most disputes settle -- many before they turn into lawsuits, many more before a final judgment is reached, and yet more before the appeal stage. In my experience, the employment cases that don't settle are often fairly evenly matched: Both sides have some facts in their favor and some facts that hurt their claims. Because there's no way to predict an obvious winner or loser, both sides can see themselves winning. This makes it more difficult, psychologically, to settle, and sometimes leads everyone to decide they might as well roll the dice and take their chances in court. Cases in which one side clearly has the better of the argument are more likely to settle, unless one party is just dead set against it for some reason.

So what happened here? It's anyone's guess, but here's one thing that jumped out at me from the opinion: Plainfield really seemed to believe that it was entitled -- or even required -- to honor its resident's racial preference. The nursing home argued that it was simply following state and federal laws that allow patients to choose their own health care providers, and likened its situation to one in which an employer may hire based on gender for positions such as health care aides assisting with bodily functions, prison guards who will perform searches, or bathroom attendants.

There are two fatal flaws to this argument: First, Title VII recognizes that there are some positions for which it might be appropriate for an employer to hire based on gender. That's what the bona fide occupational qualification (BFOQ) defense is for. Putting on a traditional Shakespeare festival? Then you probably dont have to consider male actors to play Lady Macbeth. Hiring attendants for a communal women's fitting room? Likely the same. But race has played such an invidious role in our society that the BFOQ defense is not available when an employer makes distinctions based on race.

Second, the situations in which employers may distinguish based on gender all involve bodily intimacy or nudity. Our society recognizes this distinction based on privacy, not on a notion of hierarchy between genders. This is why we still have gender-segregated restrooms, locker rooms, and changing rooms, along with female Senators, judges, and doctors. In the past, we also had race-segregated movie theaters, lunch counters, swimming pools, drinking fountains and more, a distinction based not on privacy, but on racist notions about the inferiority of African Americans and the danger (or impropriety) of physical mingling among the races. With this opinion, perhaps notations such as "Prefers no Black CNAs" in patient charts can join these other relics in the dustbin of history. 

Thanks to our friends at SHRM for highlighting this case in its weekly email newsletter.