Q: What is a skilled nursing facility to do when a resident doesn’t want to be cared for by a person of another race?
A: It is not uncommon that a skilled nursing facility will find itself between a rock and a hard place when it comes to patients’ rights and civil rights of staff members.
A patient’s right to choose is not the only consideration in these instances. Facilities must balance the regulated need to adhere to patient preferences with the requirement to protect staff members’ rights under Title VII of the Civil Rights Act, which applies in all states.
Courts have held that the balance should tip in favor of the staff member and not the resident’s preference. Simply put, the right to choose a care provider under the Federal Nursing Home Reform Act excludes the right to choose based on the race or ethnicity of a care provider.
Federal courts have found that a practice that seeks to honor the racial preferences of residents regarding caregivers may give rise to an actionable claim for creating a hostile work environment.
The courts have found that Title VII forbids employers from using race as a bona fide occupational qualification, and that the regulations merely require facilities to allow residents access to healthcare providers of their choice, not to assent to the racial preferences of its residents.
These approaches will help skilled nursing facilities navigate this difficult terrain:
1. Warn residents before admission of the facility’s non-discrimination policy.
2. Secure the resident’s written acknowledgment that assignments will be made without regard to race.
3. Attempt to reform the resident’s behavior after admission.
4. Assign staff based on race-neutral criteria that minimize the risk of conflict.
5. Advise employees that they can request protection from racially harassing residents.
Norris Cunningham, Esq., is a member at Stoll Keenon Ogden, PLLC. Send him your legal-related questions at at [email protected]
From the October 2022 Issue of McKnight's Long-Term Care News
