In a decision by Judge Williams dated July 20,2010 it was found that a work environment at a nursing home which included a written policy of not allowing a black nursing assistant to provide care for a resident who did not want care from black assistants was hostile and abusive. This may be quite obvious to many readers, but this case decided in 2010 was based on facts that took place in 2006 – 42 years after the Civil Rights Act of 1964 was enacted!
I bring this case to your attention for two reasons. First, to reinforce that state specific policies related to the privacy rights of residents to choose their health care providers do no “trump” federal regulations related to discrimination in employment, care and services. Second, to address an issue that has plagued long term care facilities for many years – the issue of sex discrimination in the health care setting.
This case compares the two by stating that privacy interests that are offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race. Just as the law tolerates same sex restrooms or same sex dressing rooms, but not white-only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same-sex health providers, but not same race providers.
The employer in this case argued that under state law a resident had a right to choose a personal attending physician and other providers of services. This created a conflict between state and federal law. When two laws conflict, one state and one federal, the Supremacy Clause dictates that the federal law prevails. The Court found that the employer should have taken reasonable efforts to inform residents, prior to admission, of their non-discrimination policies, secure the residents consent, attempt to reform the resident’s behavior and assign staff based on race-neutral criteria that minimize the risk of conflict. And even if all of these measures do not fully guarantee racial harmony, they exemplify “reasonable” measures that the employer can take.
With regard to the difference between these measures and varying treatments of residents based on gender, the court found that the line of cases cited in this case taken together hold that gender may be a legitimate criterion- a bona fide occupational qualification for accommodating a patients’ privacy interest. For more on Title VII cases permitting sex discrimination see Jennings v. NY State Office of Mental Health (786 F.Supp 376 (S.D.N.Y 1992), Fesel v Masonic Home of Del., Inc. (447 F.Supp 1346) and Backus v Baptist Med. Ctr. (510 Supp. 1191).
