October 26, 2010
John Stone, Senior Attorney, National Legal Research Group
In the typical case in which an employee sues under federal or state employment discrimination laws for a racially hostile environment in the workplace, the racially charged conduct emanates only from fellow employees or supervisors. A recent case demonstrates, however, that an employer may be found liable under such provisions even if the harassing atmosphere is caused by the employer's having honored or acquiesced in the racial preferences and biases stated by the employer's customers, with whom the plaintiff employee normally would interact as part of a job. What might be called the "customer made us do it" defense has not been well received by most courts. See, e.g., Johnson v. Zema Sys. Corp., 170 F.3d 734, 744 (7th Cir. 1999) (evidence of segregated sales force supported Title VII claim); Ferrill v. Parker Group, Inc., 168 F.3d 468, 477 (11th Cir. 1999) (employer's practice of assigning "get‑out‑the‑vote" phone calls based on race violated Title VII); see also Fernandez v. Wynn Co., 653 F.2d 1273, 1276‑77 (9th Cir. 1981) (rejecting customer- preference defense in sex discrimination context and relying on EEOC holding that Title VII does not permit the accommodation of the racially discriminatory policies of foreign nations).
The situation in Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. 2010), pitted a health‑care worker's right to a nondiscriminatory workplace against a patient's demand for white‑only health-care providers. The defendant nursing home housed a resident who was unabashed in stating that she did not want assistance from a black certified nursing assistant ("CNA"). The nursing home complied with this racial preference, telling Chaney, a black CNA, in writing every day that no black assistants should enter that resident's room or provide her with care.
This policy was followed so rigidly that on occasion it put the nursing home at risk of violating duties of medical care owed to its residents. For example, on one occasion, Chaney, who went along with the policy for fear of losing her job, reluctantly left the resident with the "whites only" directive on the floor after a fall, while she searched the building for a white CNA rather than immediately attending to the resident's needs herself. The effect on Chaney of the honoring of racial preferences was compounded by the fact that coworkers frequently reminded her of, and warned her about, the policy. Some of these same fellow employees also directed racial epithets at Chaney, as is more common in racially hostile atmosphere cases, but the Seventh Circuit clearly treated application of the racial-preference policy as the most important part of the nursing home's conduct creating the unlawful work environment:
Most importantly, Plainfield acted to foster and engender a racially‑charged environment through its assignment sheet that unambiguously, and daily, reminded Chaney and her co‑workers that certain residents preferred no black CNAs. Unlike white aides, Chaney was restricted in the rooms she could enter, the care that she could provide, and the patients she could assist.
Id. at 912. All in all, this atmosphere at work took an emotional toll on Chaney, who routinely left work "teary-eyed."
Chaney brought an action against the nursing home under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-4. She claimed that the practice of acceding to the racial biases of nursing home residents is illegal and creates a hostile work environment. (She also asserted, in a separate race discrimination claim, that the nursing home fired her, only three months into the job, because she was black.) The federal district judge granted the defendant's motion for summary judgment, but the Seventh Circuit reversed and remanded the case for further proceedings.
The nursing home's defense was more nuanced than simply saying that it did not want to annoy or offend the resident with the "whites only" instructions. It argued that a policy of acquiescing in such preferences was necessary if the nursing home was to comply with state regulations concerning patient care. However, this defense was found to be lacking both factually and legally.
The state regulations at issue required that the nursing home allow its residents access to health-care providers of their choice, but this was not at all the same as a requirement that the nursing home instruct its employees to accede to the racial preferences of residents. If a racially biased resident wished to employ, at her expense, a white aide, state law may have required the nursing home to allow reasonable access to that aide. But the regulations could not be read to say that a resident's preference for whites among the nursing home's own staff should control over the nursing home's obligation to its employees to refrain from race-based work assignments. Moreover, even if the nursing home's reading of the effect of the state regulations was correct, the result would have been a conflict between such state regulations and Title VII. In that event, the federal law would be controlling, under the Supremacy Clause.
The defendant nursing home in Chaney attempted to compare the case against it with those cases in which, also in a health-care setting, courts have recognized that the gender of an employee may be a legitimate criterion, or job qualification, for purposes of accommodating the privacy interests of patients. In this context, however, the distinction between race and gender preferences makes all the difference:
The privacy interest that is offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race. Just as the law tolerates same‑sex restrooms or same‑sex dressing rooms, but not white‑only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same‑sex heath providers, but not same‑race providers.
Id. at 913.
In summarizing its reasoning for remanding the hostile atmosphere claim for consideration by a jury, the Seventh Circuit stated:
Plainfield never corrected the princip[al] source of the racial hostility in the workplaceCits 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.
Id. at 915.