Employment Discrimination Based on Race or Background in Health Care: 2023 Update
Imagine a nurse going to work for the first time at a hospital in your community. After thousands of hours of education and clinical rotations with real patients in training, it is time to join the healing professions and fight illness on the front lines. Unfortunately, the camaraderie of the university setting and the personal growth that a degree in nursing represents sometimes gives way to a nightmare of hostility, differential treatment, and lack of advancement.
Employment discrimination based on race, national origin, language, ethnicity, religion, and other factors is a real problem. It gets in the way of competent health care, fair treatment of applicants, and even some patients feeling like they should share everything about themselves.
In one famous case, nurses originally from the Philippines felt harassed and embarrassed when they were attacked by the other people at a hospital for speaking languages other than English, even while on the phone with loved ones. A discrimination case involving many of these nurses was eventually settled for nearly $1 million. They alleged civil rights law violations, and the settlement called for regular training of hospital employees on diversity issues and how to rectify instances of bias at work.
The federal law of employment discrimination goes back a long time. Some of its origins are in the Fourteenth Amendment and civil rights legislation from that time, after the U.S. Civil War.
One of the most important laws today, however, is the Civil Rights Act of 1964, Title VII. It covers discrimination based on race or color, or background, religion, or sex. Federal law is valid no matter what state someone lives in within the United States.
Sometimes the question is whether discrimination was intentional. Obviously different treatment based on race or background is one way to prove this. Being denied fair consideration as an applicant for a job or a promotion, being subjected to hostile remarks or conditions, or being fired or laid off based on race or family origin in terms of language or country can be a red flag.
An employer or co-worker may be able to argue that they had job-related reasons for treating someone differently who happened to be of a different race or background. A real requirement for a job may be a legal reason not to hire someone, or to fire someone you already hired.
Federal law has a way of dealing with the arguments of employees who have information that they were discriminated against, and believe it, but were not involved in all the relevant meetings, and may even have been surprised that they were fired, not promoted, demoted, not hired, or denied a raise or beneficial transfer.
First, the employee can use court processes called discovery to obtain evidence from a hospital or other health care provider. Under the law, a victim of discrimination does not have to produce evidence that is particularly or especially within the knowledge of the perpetrator, such as an employer in a discrimination case or a polluter in a tort case like one from Erin Brokovich stories. They can require the defendant to produce documents containing the evidence, tell its managers to sit for interviews called depositions about the evidence, or answer questions in writing called interrogatories using the evidence in its possession.
Second, courts shift the burden of proof sometimes. The employee has to allege some action that makes him or her worse off than other employees of a different race or background. Therefore, many lawsuits start with a story about something bad happening to a worker or potential worker at a health care facility that did not happen to one or more workers of a different background or identity. These stories may involve never getting hired or interviewed at all, being fired early or more frequently, being demoted or transferred, not getting promoted, or not receiving the same raises or benefits like time off or pensions. The important point is that race or background has been a factor in the decision or situation. It has to be part of the motive, not necessarily all of it.
Third, federal law can be especially helpful because but it regulates and limits seemingly neutral policies that have a negative effect on persons of a specific racial, national, or language background, or are perceived as being of a certain religion. When such supposedly neutral policies actually have a different impact on persons because of their race, color, national background, religion, or sex, that is a type of discrimination. That also means that employees do not always have to have direct evidence of discrimination, like derogatory words or images.
The Biden administration has identified as racial discrimination problems:
- algorithmic discrimination using software or rankings on employees in a way that results in unfair or non-transparent discrimination;
- positions or facilities that are inaccessible to persons with disabilities; and
- positions or facilities that are not provided with language access services needed by patients, clients, or employees who are not fluent English speakers.
It has instructed each agency to renew its efforts to enforce the civil rights laws, end discrimination, and ensure equity in the areas under its authority. For health care, this would include the Department of Health and Human Services and the Equal Employment Opportunity Commission, as well as the Department of Justice and Federal Trade Commission.
It is important to know your rights when it comes to racial discrimination and other employment discrimination. A free consultation can help you understand your rights and take action to protect them.
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