Failing to manage harassment of workers can lead to litigation
Lisa Kathumbi, Littler Mendelson P.C.
A young female patient indicates she prefers a male doctor.
A Caucasian man requests that African-American nurses not be included in comfort holding treatment for his premature baby.
A nursing home resident refuses treatment by a physical therapist wearing a hijab.
Patient-centered care encourages providers to partner with patients and their families to identify and meet the full range of patient needs and preferences. A positive patient-provider relationship has been shown to increase transparency and communication and improve overall health outcomes. For this reason, state and federal lawmakers have recognized a patient's “right to choose.” However, state and federal law also prohibits discrimination and harassment based upon race, sex, age, disability, and religion, among other protected class categories.
Healthcare providers are rightfully concerned with what appears to be a conflict between honoring patient preferences and protecting employee rights. This article examines patient preferences and patient conduct that has led to employment litigation and includes recommendations to help healthcare providers minimize risks.
The issue of racial preferences in medical care is not new, but recent studies related to patient care offer a new lens for evaluating the issue. Some research has suggested that race concordance, and honoring a minority patient's racial preferences in particular, may improve health outcomes and reduce health disparities. Courts have not specifically addressed the question of whether a healthcare provider can honor a patient's racial preferences in an effort to address health disparities without violating anti-discrimination employment laws. In other contexts, however, courts have consistently found that an employer's obligation to provide a discrimination-free workplace takes precedence over a patient's racial preferences.
In 2010, the Seventh Circuit rejected a nursing home's policy of honoring the racial preferences of its residents when assigning care providers. The plaintiff in the case was an African-American nurse assistant given written instruction that a resident in her assigned unit “Prefers No Black CNAs.” The nursing facility argued that state regulations governing long-term care facilities give residents the right to choose their healthcare providers. The court disagreed, finding that catering to the racial preferences of residents is an insufficient justification for otherwise violating Title VII protections against disparate treatment.
More recently, in 2013, an African-American nurse filed a charge against a Michigan hospital alleging that for more than a month no African-American nurses could care for a Caucasian baby at the father's request. The matter settled, but it is a reminder that patient preferences should be evaluated against state and federal anti-discrimination laws. To date, courts have been unwilling to treat a patient's right to choose as a legitimate reason for race-based employment practices.
While courts have ruled that employers cannot discriminate based on patient preference relating to race or national origin, gender preference has been open to more interpretation. A healthcare employer can honor a patient's request to not have an opposite-sex caregiver assisting with care without violating anti-discrimination employment laws, but only as to care that involves issues of intimate personal privacy, such toileting or examination of private areas. There must be a specific patient request related to personal privacy, rather than a blanket policy of exclusion. Id.
What happens, however, if a hospital patient or nursing home resident refuses treatment from a transsexual or transgender care provider or demands reassignment of a care provider because of non-conforming gender behavior? Courts have held that discrimination because of gender non-conformity or gender stereotyping is sex discrimination. At the close of 2014, the EEOC filed two sex discrimination lawsuits related to discrimination against transgender employees, including a claim against an eye clinic alleging the clinic fired an employee for failing to conform to gender stereotypes. As the workplace continues to change, healthcare employers should remain mindful of this evolving area of the law and carefully evaluate patient preferences that could involve gender stereotyping.
Research has shown that healthcare providers can improve a patient's healthcare experience by understanding and honoring the patient's religious values and beliefs. Healthcare providers are also required to accommodate employees' sincerely held religious beliefs or practices, which can extend to dress (i.e., a Christian cross or a Muslim hijab (headscarf)), provided that doing so does not create an undue hardship for the employer.
In a healthcare setting, an employee's request for a religious accommodation that interferes with the ability to safely provide care or treatment would present an undue hardship. However, patient religious preference has not been found to be a cognizable basis for denying an employee's religious accommodation request or a legitimate basis for reassigning an employee of a different faith. Ultimately, honoring a patient's preference to reassign a care provider because the care provider is of a different faith than a patient or because the care provider wears a visible symbol of that faith can lead to claims of employment discrimination.
Duty to Prevent Harassment
Honoring discriminatory patient preferences can prove problematic, but requiring an employee to continue to provide care when a patient is openly discriminating against or harassing an employee can also lead to costly litigation. It is illegal for a patient to harass an employee on the basis of any protected class category, including race, color, national origin, sex, religion, age (over 40) or disability. This includes unwelcome touching, sexual comments, leering, racial or religious jokes or epithets, ethnic insults, or comments about an employee's disability or perceived ability.
The issue of harassment of employees by patients is often more complicated in healthcare settings, particularly long-term care settings, where inappropriate comments or behavior may be attributable to a patient's deteriorated mental condition, such as dementia or Alzheimer's disease. However, a patient's or resident's mental condition will not shield a healthcare employer from liability. Ultimately, a healthcare employer has a duty to investigate and respond to any complaint of harassment made by an employee.
Steps Healthcare Employers Should Consider
As the patient-centered care movement continues to grow, healthcare providers should evaluate patient preferences on a case-by-case basis and understand the laws implicated by each individual patient request. In addition to having policies in place to address patient preferences and patient conduct, healthcare employers should perform ongoing training on how to respond to patient harassment or discriminatory animus toward employees, and complete thorough investigations when complaints arise.
Building a culturally competent workforce that is trained to serve a diverse population can also limit a healthcare employer's exposure to employment-related litigation and claims, in addition to improving health outcomes. Failing to address and manage patients' discriminatory preferences or harassment of healthcare workers, however, can put healthcare providers at risk of costly employment litigation.
Lisa Kathumbi is an associate at Littler Mendelson P.C., and represents employers across jurisdictions in a broad range of labor and employment matters. She can be reached at firstname.lastname@example.org or 614-463-4232.
 Race concordance refers to the ability of a patient to be treated by a provider of the same racial background.
 Cooper, Lisa; Powell, Neil, Disparities in Patient Experiences: Health Care Process, and Outcomes: The Role of Patient-Provider Racial, Ethnic, and Language Concordance, No. 753, Commonwealth Fund (July 2004), http://www.commonwealthfund.org/programs/minority/cooper_raceconcordance_753.pdf
 See Chaney v. Plainfield Health Care Center, 612 F.3d 908 (7th Cir. 2010).
 Battle v. Hurley, No. 2:2013cv10680 (E.D. Mich. filed Feb. 18, 2013).
 See discussion in Spragg v. Shore Care, 293 N.J. Super. 33, 50-55(1996).
 See Doe v. United Consumer Fin. Serv., 2001 U.S. Dist. LEXIS 25509, at *8-13 (N.D. Ohio Nov. 9, 2001) (finding that while Title VII does not prohibit discrimination based on an individual's transsexualism, a plaintiff can assert a claim that she was terminated because her appearance and behavior did not meet gender expectations); Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1041 (8th Cir. 2010) (concluding that evidence that a female “tomboyish” plaintiff had been fired for not having the “Midwestern girl look” suggested “her employer found her unsuited for her job . . . because her appearance did not comport with its preferred feminine stereotype”).
 EEOC v. Lakeland Eye Clinic, P.A., Civ. No. 8:14-cv-2421-T35 AEP (M.D. Fla. filed Sept. 25, 2014).
 Puchalski, Christina, M.D., Ethical Concerns and Boundaries in Spirituality and Health, AMA Journal of Ethics, Vol. 11, No. 10:804-815 (October 2009), http://journalofethics.ama-assn.org/2009/10/oped1-0910.html