Hunton Employment & Labor Perspectives

An Indiana nursing home was found in violation of Title VII this month for acceding  to a resident’s request for white-only healthcare providers.  In Chaney v. Plainfield Healthcare Ctr., No. 09-3661 (7th Cir. July 20, 2010), a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit reversed a lower court’s ruling in favor of the nursing home and held that this was a clear violation of Title VII.

The nursing home, Plainfield Healthcare Center (“PHC”), housed a resident who did not want assistance from black nursing assistants.  PHC complied with this racial preference by detailing on an assignment sheet, which employees received daily, that no black nursing assistants should enter the particular resident’s room or provide her with care.  The court held that this policy violated Title VII by creating a racially-charged and hostile work environment, as the assignment sheet unambiguously and daily reminded plaintiff, a black nursing assistant, that certain residents preferred no black nursing assistants, and that unlike white aides, plaintiff was restricted in the rooms she could enter, the care that she could provide, and the patients she could assist.

PHC argued that long-term care facilities have obligations to their clients that place them in a different position than most employers.  PHC further argued that Indiana regulations state that long-term care residents have a right to choose a personal attending physician and other providers of services, and that without the policy, PHC risked exposing black employees to racial harassment from the residents and therefore exposing itself to hostile workplace liability.  The court found all of these arguments unavailing, instead offering several alternative courses of action that PHC could have taken, such as:

• Warning residents before admitting them of the facility’s non-discrimination policy, and securing in writing each resident’s consent to the policy;
• Assigning staff based on race-neutral criteria that would minimize the risk of conflict;
• Advising its employees that they could ask for protection from racially harassing residents; and/or
• If racially-biased residents wished to employ white aides at their own expense, allowing reasonable access to those aides.

While this case is particularly relevant for providers of long-term care, it also serves as a reminder to all employers that if they cater to customers’ perceived racial preferences, they may be found in violation of Title VII.  Employers faced with customers who demand service-providers of a certain race or ethnicity should, in lieu of formulating policies that accede to such demands, seek the advice of legal counsel to devise solutions that will not run afoul of Title VII.