Wednesday, July 21, 2010

7th Circuit Holds Employer Violated Title VII for Accommodating Patients' "White-Only" Request

The Court of Appeals for the Seventh Circuit reversed a district court's grant of summary judgment in a somewhat unbelievable case involving a health care center's accommodation of a patients' request that no black certified nursing assistants (CNAs) treat them. In accommodating this request, the employer, Plainfield Healthcare Center, said they did not want to risk "violating state and federal laws that grant residents the rights to choose providers, to privacy, and to bodily autonomy." The accommodations led to an unfavorable work environment which led to the plaintiff, Brenda Chaney, filing a Title VII suit alleging hostile work environment and race discrimination. Indeed, the facts are disturbing:

For fear of being fired, Chaney went along with the policy. Although Latshaw remained on her assignment sheet, Chaney reluctantly refrained from assisting her, even when she was in the best position to respond. Once, Chaney found Latshaw on the ground, too weak to stand. Despite wanting badly to help, Chaney had to search the building for a white CNA. Plainfield housed at least two other residents with a similar distaste for black CNAs. One refused Chaney’s assistance in the shower, asking for a different nurse aide instead. On a separate occasion, a co-worker warned Chaney that another resident does not care for blacks. Emotionally, these race-based limitations depressed Chaney, who routinely left work “teary eyed.”

Plainfield’s practice of honoring the racial preferences of residents was accompanied by racially-tinged comments and epithets from co-workers. For instance, in the presence of a resident, a white nurse aide named Audria 4 No. 09-3661 called Chaney a “black bitch.” Another time, a white coworker looked directly at Chaney and asked why Plainfield ”. . . keep[s] on hiring all of these black niggers? They’re not gonna stay anyway.” The epithets were reported to the unit supervisor, Loretta Askew, who promised to address them. Although the epithets ceased, co-worker Audria continued to remind Chaney that certain residents were off limits because she was black. Chaney reported these comments to Askew, who renewed her promise to take care of it. Audria eventually left Chaney alone, but Plainfield’s racial preference policy remained in place and continued to surface in conversations with other employees.

In reversing the lower court the 7th Circuit held that race is not a bona fide occupational qualification ("BFOQ") and that the Indiana state law regarding long-term facilities is preempted by federal law, thus finding summary judgment inappropriate for the hostile work environment claim. It also held the same for the discriminatory discharge claim when it found that the plaintiff had presented triable issues of fact surrounding a less-than-sincere investigation into an incident involving a patient who preferred white CNAs and a comparator who was treated more favorably.

What makes this opinion extra interesting is the fact the 7th Circuit offered up several options and alternatives the health care center could have taken to address the racist preferences of its patients instead of the courses it took that led to this lawsuit. Another lesson for employers!

The case is Chaney v. Plainfield Healthcare Center, No. 09-3661 (7th Cir. July 20, 2010).

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