Recently, in Chaney v. Plainfield Healthcare Center, the US Court of Appeals for the Seventh Circuit held that a healthcare worker's right to a non-discriminatory workplace takes precedence over a patient's demand for a non-African American nursing assistant under Title VII of the Civil Rights Act of 1964. Brenda Chaney was hired by Plainfield as a certified nursing assistant (CNA). Her duties included monitoring patients, responding to individual patient requests and assisting with their general daily living needs. One of Chaney's patients, Majorie Latshaw, made a request to Plainfield that she not be cared for by any African American CNAs. As a result, Plainfield specifically wrote "Prefers No Black CNAs" on Chaney's daily assignment sheet. Plainfield acknowledged that the facility honors the racial preferences of its patients. Despite adhering to the discriminatory requests of patients and enduring abuse from coworkers, Chaney was fired after three months of work for allegedly using an offensive word in front of a patient. Asserting her Title VII right to a non-hostile work environment, Chaney brought suit against Plainfield. Chaney v. Plainfield Healthcare Center demonstrates that racial discrimination still exists despite the achievements of the civil rights movement and the progress of recent decades. Ridding society of discrimination is not as easy as Chief Justice John Roberts put it in Parents Involved in Community Schools v. Seattle School District No. 1: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Although it has been 44 years since the enactment of Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin, some nursing home facilities still allow overt discrimination to occur, such as Plainfield's policy of honoring the racial preferences of its patients. The reality is that nursing homes throughout the country have allowed patients to assert discriminatory preferences at the expense of their employees. However, because care facilities generally settle with plaintiffs that bring Title VII claims, the frequency with which these claims are brought is not publicized.
While it is relatively clear that an employer cannot discriminate on the basis of race under Title VII, the right of a patient to express discriminatory requests under the Federal Nursing Home Reform Act, enacted as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA 87) is less straightforward. OBRA 87 states that patients have a right to "choose their care provider," and many long-term care facilities interpret this right as being free from limitations and as superior to an employee's right to a non-discriminatory workplace. Due to the conflict, Congress should amend OBRA 87 to include a nondiscrimination provision consistent with Title VII. Since the Seventh Circuit's decision sets precedent only in that circuit and applies only to cases within its jurisdiction, it is possible for other circuits to have contrary holdings on a similar set of facts. As such, amending OBRA 87 to include a nondiscrimination provision would standardize and harmonize the competing laws, creating bright-line principles regarding a patient's right to choose and an employee's right to a non-hostile work environment.
Care facilities rightfully fear what seems to be the gray area between adhering to a patient's preferences and protecting the rights of its employees. There is no contention that the Seventh Circuit wrongly decided Chaney's claim, nonetheless, in addition to amending OBRA 87, more needs to be done to eradicate patient-initiated discrimination in health care facilities. The Seventh Circuit's holding has brought the issue of patient discrimination to the forefront, and the problem should not be ignored. While alleviating the problem will likely entail more than the mere suggestions set forth by the court, its decision does offer a number of suggestions for long-term care facilities attempting to balance patient and employee rights.
With a culturally diverse group of patients under the care of a facility, and with an equally diverse staff, caretakers must understand and be able to effectively communicate with their patients. Numerous factors play a role in effective communication and conflict resolution, but one major factor is cultural competency. Providing cultural competency training and making it mandatory for individuals that work in the nursing field would certainly facilitate the resolution of some of the issues that nursing homes face. However, cultural competency will not solve every conflict, and it is likely that it would not have helped in Brenda Chaney's case. It is very unlikely that Latshaw's discriminatory attitude would change during the duration of her residency in Plainfield's facility, particularly in light of her age and medical condition, and there is very little that a care facility can do to improve cultural competency beyond its walls. Nonetheless, allowing patients in long-term care facilities to assert their racial preferences and allowing employers to honor those preferences is an impediment to establishing the equality that so many have worked to achieve. While improving cultural competency is a start, more needs to be done to reform the law and the way of thinking.
In addition to providing cultural competency training, care facilities should work with patients to reform the behaviors that create a hostile work environment. Behavior contracting is one way to work towards reforming a patient's behavior, as it gives the patient and the facility the opportunity to work together to facilitate a better relationship. The facility would have the opportunity to express the desired behavior it wishes of the patient, for example allowing any nurse, regardless of race or religion, to care for the patient in the most appropriate manner. Moreover, the patient could express what the facility could do to make the patient feel more comfortable, such as educating its care providers about a particular patient's beliefs, cultural preferences and wishes for personal care. Furthermore, at a time when the patient is feeling a loss of autonomy, the contract gives him or her some control.
The issue set forth in Chaney is a reminder that things are not necessarily as society wishes or believes them to be. Decisions like the Seventh Circuit's are an important reminder that more needs to be done both in society and in the law to support equality in the work place. It is important that there is a collaborative effort between the judiciary, the legislature and employers to identify discriminatory actions and deal with them in a consistent manner. Amending OBRA 87 is one way to deal with the confusion surrounding a "patient's rights to choose." This would standardize the law and create a bright-line rule. On the other hand, care facilities that provide cultural competency training to their employees and engage in behavior contracts with hostile patients can work to directly address issues of discrimination that occur within their walls. The sooner overt bigotry is dealt with, the less harm it will have on individual members of society and society as a whole.
Sara Gronningsater is the Editor-in-Chief of the Journal of Civil Rights and Economic Development as well as a member of the Moot Court Honor Society. She has worked at various law firms including Morris Duffy Alonso & Faley and Weitz & Luxenberg, and was the 2011 recipient of the Jerome M. Ginsberg & Brandeis Association Moses M. Weinstein Scholarship.
Suggested citation: Sara Gronningsater, Discriminatory Patient Choice and the Need for Legal Reforms, JURIST - Dateline, Oct. 17, 2011, http://jurist.org/dateline/2011/10/sara-gronningsater-discrimination.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org