Risk Management Concerns Around Discriminatory Resident Behavior
The old adage that says, “the customer is always right” could not be further from the truth when it comes to discriminatory resident behavior. The Civil Rights Act has been adopted for over 50 years, yet many employers do not understand that it is unacceptable to honor racial preferences of some or any of their customers. The typical response “they grew up in different times” or “it’s a refusal of care” is no excuse to tolerate racist behavior.
By accommodating such requests, employers are violating federal law and are at a high risk for lawsuit. According to the EEOC, there were over 22,000 cases of racial discrimination in the workplace in 2020. Outlined below are two case study examples:
Case Study 1:
A nursing home recently settled a case in which a patient request for white-only healthcare providers put the employer in a difficult position. The plaintiff, a Hispanic nurse, was told that only white assistants could enter the patient’s room or provide her with care. The nurse filed suit alleging that the facility’s acquiescence to the racial biases of its residents is illegal and created a hostile work environment. She also asserted that her termination was racially motivated. The case resolved with a $150,000 settlement.
Case Study 2:
A former nurse at a Sioux Falls assisted living facility filed a lawsuit against her former employer, saying it failed to protect her from abusive racism from residents. The nurse asked for more than $22,000 in back wages and $200,000 in damages. She’s also asked the organization to adopt a policy to deal with harassment by residents.
Recommendation for Handling Discriminatory Resident Behavior
Establish a policy and procedure for handling discriminatory resident behavior. An effective program fosters an inclusive work environment and mitigates the risk of employee allegations of racial discrimination and a hostile working environment against the employer.
Title VII of the Civil Rights Act states it is unlawful employment practice to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin in addition, to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin.
Discriminatory Resident Behavior Considerations
Reassigning employees to accommodate resident requests based on discriminatory beliefs violates employment law. It is the employer’s responsibility to set guidelines through policy, train employees, and actively respond and support staff when such discriminatory requests are made. Employers need to recognize that such requests may cause distress to affected employee(s) and that it is not the responsibility of the affected employee(s) to take action.
Providers should make clear to those they serve that discriminatory behavior is prohibited. For example, communicating that requesting staff of a certain race only care for them, or requesting staff of a certain race to not care for them will not be honored.
To take a firm stance against this behavior, providers should consider adding language in admission agreements that resident discharge may be initiated based on discriminatory behavior. Consider elaborating on the provider’s stance on discriminatory behavior in the Resident Handbook. Again, it is important to clearly communicate that such behavior will not be tolerated.
Note: Accommodations for resident requests due to a history of past trauma involving a certain protected class may be considered by providers. A provider’s recourse may also be limited when the offending resident is cognitively impaired and cannot be held responsible for their actions. In both circumstances, providers still need to protect and provide support for the affected employee(s), and incorporate appropriate interventions within the resident plan of care.
Consider involving the regional Ombudsman as needed to aid in conversations with residents and families about diversity and inclusion.
Providers may consider utilizing their corporate compliance and ethics committee, and even legal counsel, to formalize their policy and guidelines surrounding discrimination, which may include resident acts. Establishing clear expectations will assist frontline employees to respond consistently to resident discriminatory behavior. This not only mitigates risk of potential employee accusations of employer discrimination, but also communicates a strong message of support to employees.
Providers are encouraged to incorporate training on diversity and inclusion for their employees. Training employees on the provider’s policy on discrimination and handling requests that may be discriminatory is also recommended. Education may also need to be provided to residents in the event a request is made that the provider’s workforce is diverse and all staff are trained to the same competencies.
When an incident of discriminatory resident behavior occurs, providers should also consider involving your corporate compliance and ethics committee to review the situation to evaluate what went well with the response and what could have been improved.