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Employers are aware that both federal and state laws preclude employment discrimination based on the race or national origin of an employee, and they know that illegal activity can include both discriminatory actions and biased statements. Most employers, however, are unaware that certain of those laws preclude discrimination by a customer, client or patient of the 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.
Caprice McCrary, a black woman, is a respiratory therapist at Oakwood Hospital in Dearborn, Mich. 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 described as a “very good” and “hardworking” therapist who is qualified to do her job. She reports directly to the manager of the Respiratory Care Department; when the manager is not at the hospital, McCrary reports to a senior respiratory therapist or charge therapist.
On Oct. 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 to a hospital room on a floor on which McCrary was assigned to provide respiratory care. When McCrary entered the patient’s room to provide care, the patient asked her to leave, referencing the statement in his chart. When McCrary asked the treating nurse why the patient had acted as he had, the nurse told McCrary about the patient’s preference, as noted in the chart.
Later that night, McCrary again attempted to provide a respiratory treatment to the patient and again was rebuffed. McCrary reported the situation to the senior respiratory therapist and to her own supervisor. She also called a human resource professional, who apologized to McCrary and said 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 McCrary was informed of the same. However, when McCrary returned to work the next day, the patient had been moved to a floor on which McCrary did not provide respiratory treatment to patients.
McCrary 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 on race. The hospital moved for summary judgment, arguing that it had acted promptly to correct the situation and that, after it acted, the patient was treated by several black 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 given to its employees on how to handle race-based requests. Based on the absence of a 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.”
McCrary v. Oakwood Healthcare Inc., E.D. Mich., No. 4-14-cv-14053 (March 16, 2016).
Professional Pointer: 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 ensure the understanding and enforcement of the policies. Anything less than this multifactor approach creates a clear risk of legal liability.
Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.
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