III. Does the Law Speak to This Issue?: Patient Preference Discrimination and the 1964 Civil Rights Act
The question looming in any inquiry into the propriety of hospitals accommodating patients' racial preferences with respect to their choice of physician is whether the practice is legal. Indeed, it is difficult to imagine preferences of this sort indulged in any other sector. What is so unique about medicine and the hospital setting that we would accept uses of race that would clearly be deemed problematic, even offensive, in other arenas? In determining the legal legitimacy of this practice, we must look to antidiscrimination laws for guidance.
Titles II, VI, and VII of the CRA, the most prominent civil rights statute enacted since Reconstruction, outlawed discrimination against individuals based on race, color, or national origin. This broadly remedial, landmark legislation was passed at a time when discrimination was rampant and practiced openly in virtually every aspect of public life. Individuals were routinely denied access to public establishments because of their membership in a disfavored minority group, and with rare exceptions, health and social service organizations in the United States were segregated by race.
Antidiscrimination laws have been quite effective at curbing blatant race discrimination in most public contexts, but does their reach extend to hospitals yielding to patients' racial biases? This Part examines the antidiscrimination laws that bear on this practice, including Titles II, VI, and VII of the CRA. It contends that these laws fail to offer a clear legal directive on the issues of healthcare providers accommodating patients' racial preferences, and that this practice does not, in fact, constitute the type of invidious discrimination envisioned by the drafters of the CRA. This Part further argues that although acceding to patients' race-based requests may appear to contravene antidiscrimination norms, it is actually consistent with principles of antisubordination and racial equality.