A hospitalized elderly patient has trouble understanding a physician from another country; based on patient preference and concerned about the potential for miscommunication leading to patient safety issues, the hospital reassigns the patient to another provider.
An Asian woman refuses to be treated by a male African-American nurse.
A hospital's policies indicate that patient preferences will be taken into consideration when assigning nursing or other clinical staff.
These are all examples of various forms of discrimination that healthcare organizations exhibit on a regular basis and, perhaps surprisingly, in some cases they are perfectly appropriate.
While Title VII is very clear about areas of discriminatory practice, the issues become a bit murkier for hospitals and other healthcare organizations. Services provided by healthcare practitioners are far different from retail settings, for instance.
Hospitals may understandably struggle when trying to find a balance between minimizing legal risk and meeting patient needs which, as in the case of patients who may struggle to understand certain providers, could raise issues of safety.
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Legal & Ethical Issues
In healthcare settings, says David Goldstein, a shareholder at Littler Mendelson in Minneapolis, these issues come up with a fair amount of frequency and they raise both legal and ethical issues.
"Even where the law might allow you to honor such a request, the negative impact on your employees can be huge," he notes. "Yet, at the same time, there are clearly situations where failing to honor that type of request may negatively impact treatment." These are issues where there are not always easy answers, he acknowledges.
In situations where patients are making decisions about their providers these issues rarely emerge, notes Goldstein. A male patient may choose not to visit a female physician. A Caucasian patient may choose not to visit an African American patient. These personal choices occur regularly, however discriminatory they may be.
Where the issues become problematic are situations in which the patient may not have the discretion to choose their providers, most often in hospital settings, says Goldstein.. He recalls a situation he read about online where a patient from Korea, who had been involved in World War II and was biased toward the Japanese was in a hospital in Hawaii and was not willing to accept treatment options from the Japanese physician assigned to the case.
"To simply discount that seems wrong," Goldstein acquiesces, "but to give into it seems very troubling too."
Knowing the Law
The question of whether or not it is allowable to discriminate comes down to statute, says Spencer Silverglate, a civil litigation attorney with Clarke Silverglate, P.A. in Miami, Fla..
"The general answer is that it is permissible to discriminate unless there is a specific statute that prohibits it," he says. "You can terminate or not hire an individual for any reason, as long as it's not a reason that's prohibited by statute, such as their gender, their age if they're over 40, their religion, national original and race and things like that."
But, he adds, "Where employers run into trouble is if the employee can somehow link whatever the discrimination is based on to something that is protected under Title VII" or a state or local statute.
"There are a lot of things which generally are not illegal, but creative employees and, in particular, creative plaintiffs' lawyers will try to figure out a way to shoehorn it into something that is illegal," says Silverglate.
The key for employers is demonstrating that any area of discrimination is tied to a bona fide occupational qualification (BFOQ).
"BFOQs can trump affirmative action when an employer can show that a specific characteristic is reasonably necessary for its normal business operations," e.g., female waitresses and performers at gentlemen's clubs, male models for men's clothing lines or same sex domestic violence counselors, says Shawn S. Talley, PHR, director of human resources with NovaSom, Inc. in Glen Burnie, Md..
Gender-specific employee requirements may be upheld in certain situations agrees Laura T. Kerekes, SPHR, chief knowledge officer with ThinkHR in the Atlanta area.
In addition to Talley's examples, ThinkHR's clients find these issues arise with personal service attendants in healthcare and related healthcare professions. In some cases, patients, or their families, request same-sex nurses and nursing attendants to care for them or their loved ones.
"While the courts have consistently ruled that employers in personal service firms cannot discriminate based on 'client preference' relating to race or national origin, this issue of gender preference has been open to more interpretation because of the BFOQ exception," Kerekes says.
So healthcare employers can honor specific requests for a same-sex caregiver without violating the laws against discrimination, but only if the care to be given involves issues of intimate personal privacy, such as a patient's preference not to have an opposite-sex caregiver assisting with toileting or cleansing the patient's body in private areas."
Navigating Tough Terrain
While the issues can become complex, in reality, says Silverglate, employers and their HR advisors generally have a pretty good sense of what is right and what is not - from both a legal and ethical perspective.
BFOQ-related decisions generally come back to a consideration of the business the company is in, their mission and the customers they serve agrees Goldstein. Healthcare providers, he notes, often have ethicists on staff and these situations clearly require their involvement, along with the involvement of the medical staff in making decisions.
"I think it's also very important to communicate in an open and appropriate way with the impacted staff about what's going on," he says, both to treat them appropriately to ensure retaining good people, and to avoid the potential for litigation.
Despite the sensitivity of some of these issues, and their complexity, reason generally prevails.
"Like a lot of issues in the law, people tend to be reasonable and practical, even when the law is sometimes confusing and difficult," says Goldstein. "I think employers, in all kinds of contexts, deal with these issues all of the time and try to handle with them in reasonable ways. Frankly, their decisions rarely get challenged because a lot of this is just common sense."
When in doubt, however, it is important to call upon the advice of legal professionals. Their insights, along with input from medical staff and ethicists can help to find the right balance between policy, preference and the law.
Lin Grensing-Pophal is a freelance writer.