A recent case from a Michigan hospital provides a poignant reminder that companies cannot use the racism of customers to discriminate against employees on the basis of race. In Cleveland, where we have a vibrant healthcare industry, the case should be a lesson to hospital systems, nursing homes, and to healthcare workers themselves that employees are to be judged on their merits and abilities, not their skin color.
Flashing a swastika tattoo, a man at a Flint, Michigan hospital recently demanded that African American nurses not be allowed to care for his newborn baby. The hospital obliged the man’s request, noting in the baby’s chart, “No African American nurse to take care of baby.” An African-American nurse who was removed from caring for the newborn filed suit against the hospital. Apparently having realized its mistake, the hospital promptly settled.
It is illegal for a company to discriminate against its employees on the basis of its customers’ racial preferences. These “customer preference” discrimination cases can arise particularly in the healthcare field, where patients at a hospital or nursing home may harbor racist beliefs. The Michigan hospital violated the law when it removed the African American nurse from her regular job duties in order to satisfy the preferences of a patient’s racist father. The same would be true had the incident occurred in one of Cleveland’s many healthcare facilities.
Because of differences in statutory language, under very limited circumstances, employers might be able to use customer (or patient) preference as a defense to a sex discrimination claim. For instance, a defense might be based on privacy concerns of having an opposite sex healthcare worker caring for the patient. But that defense does not apply to race discrimination. One court explained the distinction with an analogy: “[T]he law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs.” Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010).
The Michigan case is an example of how not to act. Nurses and other healthcare workers employed in Cleveland’s many hospital systems and nursing homes should be aware that patient racial preferences are no justification for discrimination.