Generally, Title VII of the Civil Rights Act of 1964 prohibits an employer from catering to the discriminatory desires of its customers. As one commentator has noted, however, one of medicine’s open secrets is its “culture of accommodation,” in which healthcare providers routinely accommodate a patient’s request for a doctor, nurse or other clinical worker of a specific race, gender, religion, or other protected class.1 Recent reports of patients in long-term care facilities refusing treatment by nurses who are, or appear to be, of African descent based upon those patients’ “fear” of Ebola have placed this issue back in the spotlight in recent weeks. Healthcare employers who cater to the preferences of patients subject themselves to the very real risk of creating a hostile work environment in violation of Title VII.2
It is important to note that Title VII treats race and national origin differently in this context. While Title VII imposes a blanket prohibition on employers catering to customers’ race-based preferences, employers may make employment decisions based on gender, national origin, or religion if they can demonstrate that gender, national origin or religion is a “bona fide occupational qualification.” The bar for meeting this standard is very high, as the qualification must be compelling, overriding, or inextricably linked to the central mission or essence of the job. For example in the healthcare setting, courts have upheld patient preferences for same-sex caretakers due to privacy concerns.3 It is unlikely that a court would permit a healthcare provider to institute a policy that caters to patients’ xenophobic preferences against being treated by a nurse of West African descent, particularly given the science on the spread of the Ebola virus. If a patient’s objection is based on knowledge that the nurse has recently traveled to West Africa, catering to the patient’s objection would be more legally defensible because it is based on the nurse’s actions and not national origin per se.
From a practical perspective, healthcare employers should educate patients about the Ebola virus and communicate to them the steps taken to protect them and the nursing staff from Ebola. For example, if the hospital has instituted a mandatory 21-day paid-leave period for all staff who have returned from West Africa, communicating that policy to the patient could assuage much of their fear. Further, patients should be educated on the limited geographical scope of Ebola outbreaks in West Africa in the hopes of reducing anxiety they may have towards nurses of African descent in general.
Ultimately, if a patient insists on refusing care from a nurse because of her national origin despite the employer’s attempts to educate and reform the patient, the healthcare employer may have to make the difficult decision to discharge the patient to another facility. Just as healthcare facilities cannot discriminate in providing treatment, they likewise cannot accommodate or facilitate discrimination by their patients.
1 Kimani Paul-Emile, “Patients’ Racial Preferences and the Medical Culture of Accommodation,” 60 UCLA L. Rev. 462 (2012).
2 Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 915 (7th Cir. 2010).
3 See, e.g., Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 133 (3d Cir. 1996).