Thursday, December 14, 2017

B. Customer Preference Discrimination in Employment Under Title VII

      Title VII of the CRA is the primary federal statute addressing employment discrimination. It specifically prohibits employers from discriminating, by motivation or impact, against persons because of race, color, religion, sex, or national origin; and it applies to discrimination with respect to “compensation, terms, conditions, or privileges of employment.”

      The law also makes clear that an employer's wish to cater to the actual or imagined discriminatory preferences of its clientele is generally not a valid defense for treating employees differently based on protected characteristics. Thus, for example, a provider of security services cannot bow to customer preferences for male security guards by reassigning women to inconvenient, lower-paid positions; nor can a telephone marketing firm succumb to a client request that only black employees call black households and white employees call white households.

      The accommodation of patients' racial preferences in the hospital context, however, is decidedly not the typical Title VII scenario; nor does it conform neatly with the types of discrimination that Title VII was enacted to address, which may explain why physicians have not objected to, and indeed have continued to indulge, patients' racial preferences. In fact, there is no case law directly addressing this practice. The only case that comes close to broaching this issue is Chaney v. Plainfield Healthcare Center, in which a black certified nursing assistant (CNA) sued her employer, a nursing home, for race discrimination under Title VII. She alleged that she was subjected to a racially hostile work environment and based her claim, in part, on the fact that the nursing home distributed daily a written assignment schedule for all employees that indicated each patient who “prefers no black CNAs.” The Seventh Circuit held that Title VII prohibits nursing homes from making staffing decisions based on their residents' racially biased wishes with respect to CNAs.

      Although on its face this case bears a resemblance to physicians accommodating patients' racial preferences in the hospital setting, it is distinguishable in ways that may explain why physicians are not challenging this practice despite its prevalence. Most notably, unlike the situation in Chaney, the decision to accede to patients' requests for same-race physicians is made not by hospital administrators but rather by physicians who are deciding among themselves how best to meet each patient's needs. As I explain, physicians' willingness to accommodate is likely due to the unique nature of the physician-patient relationship, which contrasts sharply with that of a CNA and nursing home resident.

      For example, in Chaney, the court appropriately rejected the nursing home's attempt tacitly to exploit a narrow exception to Title VII's antidiscrimination mandate. This exception, known as a bona fide occupational qualification (BFOQ), allows employers openly and legitimately to base employment decisions on sex, religion, or national origin--but not race, which is explicitly excluded. The specific characteristic or attribute must be necessary to the ordinary operation of the particular business or enterprise. More than simply job related, the qualification must be “compelling,” “overriding,” or inextricably linked to the central mission or essence of the job. Thus, the BFOQ defense would permit a theater to hire actors on the basis of gender, or an advertiser of men's clothing lawfully to advertise exclusively for and hire only male models. The employer bears the responsibility of demonstrating that all or substantially all members of the group(s) excluded from the job would be unable to perform the duties of the position.

      The BFOQ defense may also be used as a defense against a charge of accommodating customer preferences in a very limited number of circumstances in which customer privacy is a concern. Thus, for example, although the BFOQ defense will not serve as a valid justification for an airline to hire only women as flight attendants to comply with male customer preferences, the privacy interests of psychiatric patients can justify a BFOQ for personal hygiene attendants of the same sex. To this end, courts have held that for certain workers, such as nursing assistants, hospital delivery room nursing staff, and others involved in assisting individuals with dressing, disrobing, or bathing, gender may be a legitimate BFOQ for accommodating patients' privacy or modesty interests. In Chaney, however, the court correctly held that race is not a relevant factor to consider in addressing privacy concerns, nor is it relevant to the work of CNAs.

      The practice of physicians accommodating patients' racial preferences, in contrast, has not been challenged by physicians nor has it been framed as a BFOQ. This may be due to the fact that unlike the prototypical BFOQ situation, the relationship between physician and patient in the hospital context is not defined by issues of personal modesty but is instead fundamentally diagnostic and therapeutic. Thus, if physicians were challenging this practice--and they are not--then they would have to contend not with a BFOQ defense, but perhaps rather a claim based on the intimate, therapeutic, and diagnostic nature of the physician-patient relationship. This relationship, to be effective, is highly dependent on trust, productive communication, mutual respect, cooperation, participatory decisionmaking, and caring. A patient must be willing to speak candidly about personal and potentially uncomfortable or embarrassing information; to submit to bodily examination, including attention to all manner of injury and abuse; to confide in and communicate openly with the physician; to rely on the physician's recommendations; and to feel confident in the belief that the physician is acting to advance the patient's best interest. In fact, the absence of these elements may mean the difference between life and death for some patients. To this end, the AMA has consistently and unequivocally maintained that a patient's ability to choose a personal physician is a “prerequisite of optimal care and ethical practice.”

      Even beyond the intimately therapeutic character of the physician-patient relationship, there is strong empirical support for the medical efficacy of respecting patients' wishes with regard to their choice of physician. Indeed, as I demonstrate in Part IV, several studies show that this practice can benefit some patients tremendously. In addition, physicians overwhelmingly believe that their primary obligation is to provide the best possible care to individual patients since, according to the AMA Code of Ethics, physicians have “ethical obligations to place patients' welfare above their own self-interest and above obligations to other groups, and to advocate for their patients' welfare.” Thus, to the extent that they must occasionally accommodate patients' racial preferences to satisfy patients' healthcare needs, then the general sentiment among physicians, as explained by one doctor, is that “[w]hile it can be difficult, . . . emergency physicians are there to serve their patients, not act on desires to make a point and try to correct a patient's perception of the world.”

      In addition, physicians may not be challenging the practice of accommodating patients' racial preferences because it does not disparately burden physicians of a particular race, as data revealing the racial diversity of the patients making these types of requests may suggest. Several studies have found that when presented with a choice, patients of all racial and ethnic backgrounds tend to choose physicians of their own group, and all racial and ethnic groups express greater satisfaction with the quality of their care when they are racially concordant with their physician. Finally, physicians' decisions to accommodate may also be based on a belief that patients whose wishes are not respected may be more likely to sue their physicians if something goes wrong. Studies show that patients who dislike or disapprove of their healthcare providers are more likely to file malpractice claims against their providers.

      All told, the unique nature of the physician-patient relationship, the fact that this relationship may be constitutionally protected, the significance of race in the therapeutic enterprise, the fact that the accommodation of patients' racial preferences in the hospital setting does not appear to adversely affect physicians by race, and the evidence demonstrating that acceding to patients' requests has been shown to increase patient satisfaction and improve care all distinguish this practice from the types of discrimination that Title VII was intended to address.

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