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Racial preference a challenging issue

One of the basic tenets of employment law – or at least one of the points most often raised by counsel when defending against charges of discrimination – is that employers are given great latitude when making business decisions.

Almost every employment defense attorney can recite, by heart, the point of law that courts do not sit as some kind of “super-personnel department” that scrutinizes the wisdom of a company’s business-related decisions. As courts have repeatedly held, so long as the company honestly believed that its decision would help their business, the fact that it may have been an unwise one will not be held against it when determining whether discrimination took place.

So, what about situations where a company wants to cater to its clients’ wishes and preferences? After all, keeping clients happy helps the bottom line. “If I don’t do it, my competition will,” is a thought that motivates many companies when catering to client preferences, especially the odd requests. If your most important client is picky and wants a certain beverage served at meetings, you make sure to have it stocked. If your store’s customers don’t like music piped in, you change it. But what about clients who don’t want to interact with personnel of a certain gender or race? Just how far does ‘the client is always right’ principle go when the clients want companies to, essentially, discriminate on their behalf?

This point is well-settled, especially in the sales arena, that a company’s adherence to its customers’ racial bias is not a valid defense under Title VII. However, gender-based preferences are not universally regarded as distasteful by courts. One area where courts’ differing attitude toward race-based and gender-based preferences is highlighted is in the healthcare field. Courts deciding Title VII cases have permitted employers to respect a preference for same-sex health care providers. But, as a 7th Circuit decision from this past summer illustrates, this allowance does not extend to racial biases.

This case, Chaney v. Plainfeld Healthcare Center, 612 F.3d 908 (7th Cir. 2010), involved a healthcare facility that provided long-term care for close to 200 residents. One resident complained that she did not want assistance from black nursing assistants. The healthcare center acceded to this request, placing a note on the daily assignment sheet stating that the resident “prefers no black” nursing assistant. Two other residents also made comments on separate occasions that they disliked having black nursing assistants attend to them.

By catering to the resident’s racial bias, the employer may have fueled racial disharmony amongst the staff. One black nursing assistant, Brenda Chaney, cited that she experienced three separate incidents where co-workers used racial slurs toward her. Once reported, the slurs stopped, although certain co-workers would use the daily assignment statement as fodder to remind her, regularly, that certain residents were off limits to her solely because of her race.

Chaney sued under Title VII. She claimed that the Healthcare Center’s practice of honoring the resident’s racial bias request was illegal and that it, along with her co-workers’ comments, created a hostile work environment. Initially, the Healthcare Center prevailed on summary judgment. However, on appeal, the 7th Circuit reversed, holding that its policy of not allowing her to provide care for a resident because of that resident’s own racial bias was sufficient evidence that would allow a jury to find that a hostile work environment existed. The Chaney court was unmoved by the argument that the center itself displayed no racial bias, but that the grant of the request was simply an attempt to adhere to a resident’s wishes.

The 7th Circuit was also unmoved by the center’s arguments that failure to comply with the request would have resulted in a violation of statute or federal healthcare laws. For instance, the center had argued that the Medicare Act provided Medicare beneficiaries in long-term care facilities with the right to choose a “personal attending physician.” The 7th Circuit rejected this argument, noting both that the law was silent about a beneficiary’s right to choose other service providers, such as nursing assistants, and that this provision – even if it did extend to non-physician service providers – would only require that the center allow residents access to the service providers of their choice and not that the center could institute race-based work practices.

Finally, the Chaney decision noted that it viewed gender-related requests differently, as a resident’s request for a same-sex health care provider could be due to a legitimate privacy interest. Chaney also made the comparison between Title VII’s tolerance for same-sex dressing rooms and restrooms, but not racially segregated restrooms. Thus, while the race-based request should not have been granted, a gender-based request may not be as troubling, and it may be appropriate in some circumstances for an employer to honor such a request.

For employers, Chaney provides a cautionary tale against blind adherence to client requests, especially to those of an  off-color nature. In short, the customer is not always right, after all.

Jerilyn Jacobs, is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. She is available at 414-277-8500 or via e-mail at jerilyn_jacobs@gshllp.com.

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