Can it really be 2010, and there's a defendant (and willing counsel) arguing to a court that it is allowed under Title VII to accommodate a client's racial preference not to have a black nursing assistant? Sadly, yes. The Seventh Circuit reverses and remands summary judgment on this issue.
Chaney v. Plainfield Healthcare Center, No. 09-3661 (7th Cir. July 20, 2010): Judge Ann Williams summarizes the facts --
"This case pits a health-care worker's right to a non-discriminatory workplace against a patient's demand for white-only health-care providers. Plainfield Healthcare Center is a nursing home that housed a resident who did not want assistance from black certified nursing assistants. Plainfield complied with this racial preference by telling Brenda Chaney, a black nursing assistant, in writing everyday that 'no black' assistants should enter this resident's room or provide her with care."
The assignment sheets in question stated, verbatim, that the patient "Prefers No Black CNAs."
According to the summary judgment record, the racial-preference practice was open and notorious:
"Plainfield's practice of honoring the racial preferences of residents was accompanied by racially-tinged comments and epithets from co-workers. For instance, in the presence of a resident, a white nurse aide named Audriacalled Chaney a 'black bitch.' Another time, a white coworker looked directly at Chaney and asked why Plainfield '. . . keep[s] on hiring all of these black niggers? They're not gonna stay anyway.' The epithets were reported to the unit supervisor, Loretta Askew, who promised to address them. Although the epithets ceased, co-worker Audria continued to remind Chaney that certain residents were off limits because she was black. Chaney reported these comments to Askew, who renewed her promise to take care of it. Audria eventually left Chaney alone, but Plainfield's racial preference policy remained in place and continued to surface in conversations with other employees."
Within three months, she was terminated for alleged misconduct (using an offensive word in front of a patient).
Reversing summary judgment, the Seventh Circuit found genuine issues of material fact about racial harassment and discriminatory discharge. As to the former, the panel found that the racila-preference policy and the co-worker harassment combined to create a hostile work environment:
"Plainfield argues there is no basis for employer liability because its response to the racial epithets was adequate in stopping the harassment and that any subsequent comments were mere reminders of a particular resident's preference and not racially offensive. While it is true that Plainfield's actions stopped the use of the most vulgar racial epithets, we cannot agree that any further comments to Chaney about patients' racial preferences were innocent and objectively unoffensive. Nor can we agree that Plainfield's policy of acceding to patient preference, and expecting Chaney to adhere to its instructions, was reasonable."
The employer contended that the patient-preference was itself privileged by state patient's rights law, but the panel made short work of that rationale. It noted that Title VII does not recognize "race" as a bona-fide occupational qualification (BFOQ), and that state law - even if it allowed such a practice - was preempted: "Had a resident sued Plainfield under the patient's rights provision, Title VII would have supplied an affirmative defense. See Howlett v. Rose, 496 U.S. 356, 371-72 (1990); see also Grann v. City of Madison, 738 F.2d 786, 792 (7th Cir. 1984). Title VII does not, by contrast, contain a good-faith 'defense' that allows an employer to ignore the statute in favor of conflicting state law." The panel also analyzed federal Medicare law and found no license there to enforce a patient's racial preference.
Finally, the panel rejected the suggestion that the measure of separating the plaintiff from the patent was itself a corrective measure to prevent racial harassment: "More fundamentally, Plainfield never corrected the principle source of the racial hostility in the workplace-its willingness to accede to a patient's racial preferences. The hostility that Chaney described came from daily reminders that Plainfield was employing her on materially different terms than her white co-workers. Fueling this pattern was the racial preference policy, both a source of humiliation for Chaney and fodder for her co-workers, who invoked it regularly. It was, in short, a racially hostile environment, and the evidence presented at summary judgment allows a jury to conclude that Plainfield took insufficient measures to address it."