A judge bangs his gavel

A worker’s civil rights at work are more important than a customer’s right to express himself or herself, particularly in cases of racial bias.

That’s the crux of the Equal Employment Opportunity Commission’s stance in its lawsuit filed Sep. 6 against a Vermont long-term care facility, Elderwood at Burlington, owned by 98 Starr Road Operating Co. The SNF is accused of doing nothing to keep residents from racially abusing Black nursing staff, according to Norris Cunningham, a leading healthcare law expert.

The facility released a statement Sep. 6 after a McKnight’s inquiry:

“Elderwood at Burlington has been made aware of a suit filed by the U.S. Equal Employment Opportunity Commission regarding complaints of racial harassment against Black staff members at the facility by residents. 

“While we cannot comment on ongoing legal matters, we strongly emphasize that Elderwood at Burlington does not tolerate harassment of any kind, and prides itself on promoting a culture of diversity and inclusion. All reports of inappropriate resident behavior are investigated and addressed. We will vigorously defend our efforts to protect our staff from racial harassment.”

According to the EEOC release, in addition to various and frequent slurs showing racial bias, “One patient repeatedly told Black employees to ‘go back to Africa’; followed Black employees throughout the facility so as to racially berate them; and physically assaulted Black employees because of their race.”

Rather than address the problem, management allegedly responded to complaints by indicating it couldn’t stop residents from speaking their minds, and according to the release, one supervisor made it worse: “In response to one complaint by a Black nurse, an Elderwood manager told her that she should be used to being the target of racial slurs because she ‘is from the South.’” 

Cunningham said the facility drew the EEOC suit not because of the residents’ biased words and actions but because it failed to take steps to stop them.

“It’s not a hostile work environment because you’re being called names, it’s a hostile work environment because you’re being called names and your employer isn’t doing anything about it,” said Cunningham. “(SNFs) are reflexively focused on trying to meet and respect residents’ rights and that includes the right to be a bigot. A person has every right to be a bigot. 

“What they don’t have a right to do is hurl racial insults at people who are doing their job, and an employer has responsibility to minimize that and minimize the impact of that on their employees.”

Settling differences

Cunningham said the EEOC will often try to settle such matters before a lawsuit, which was attempted unsuccessfully in the Elderwood case, according to local reports. But once the suit is in motion, the agency will seek not only monetary awards for the injured but also injunctive relief. That’s because even if the complaint came from one employee, the EEOC investigation might find that conditions could harm many employees, he said.

SNF can do several things to stave off judgments against them, including: warning residents of non-discrimination policies; securing the resident’s written acknowledgment that assignments will be made without regard to race or bias; attempting to change a resident’s behavior; informing employees they can ask for protection from resident harassment.

Cunningham said facilities must balance the need to adhere to patient preferences under the regulations with the requirement to protect staff members’ rights under Title VII of the Civil Rights Act. Title VII is a federal law, so it applies to all states, he said.

He cited a 2010 federal case involving racial bias in Indiana that ended with a judgment against a facility that did nothing to keep residents from demanding care from only white staff. 

“The nursing home said, ‘We don’t have a right to tell this woman that she can’t be racist, we can’t control her speech, we can’t control her preferences,’ and the court said, ‘Naaah, that’s not good enough, because there are things you can do,” Cunningham said.

The steps SNFs can take are important, said Cunningham.

“It doesn’t mean that you’re going to have a resident who will stop using the ‘N’ word or residents that won’t say, ‘I still want a white person and only a white person,’ but you have to take these steps if you want to protect yourself and make it appear to a court and a jury that you’ve taken reasonable steps to protect your employees and prevent a hostile workplace from existing,” he said.

“It doesn’t matter if you have a resident that’s excluding people based on race or if you have a resident creating a hostile workplace by using racial slurs on a regular basis. The important step for the employer to take is are those reasonable steps that would prevent the likelihood of that happening.”