Employment Law Daily Directive that only white staff work with dangerous, racist patient was facially discriminatory
Wednesday, August 3, 2016

Directive that only white staff work with dangerous, racist patient was facially discriminatory

By Lorene D. Park, J.D. Reversing a trial court’s conclusion, following a bench trial, that a psychiatric hospital’s directive that only white staff work with a dangerous patient was an "overreaction" to the patient’s threats against his African-American attendant but was not discriminatory, the Supreme Court of Washington found that the staffing directive was facially discriminatory in violation of the Washington Law Against Discrimination (WLAD). However, the directive, which lasted for a single weekend, did not create a racially hostile work environment so the dismissal of the employees’ HWE claim was affirmed (Blackburn v. State of Washington Department of Social and Health Services, July 28, 2016, Fairhurst, M.). Allegedly discriminatory staffing directive. Nurses and psychiatric security attendants (PSAs) at the psychiatric hospital that housed violent and psychotic patients claimed the employer adopted a discriminatory directive that restricted dark-skinned PSAs from working with a violent patient who spent a significant amount of time in seclusion and restraints. Housed on F-8, a ward for men found not guilty by reason of insanity, the patient had assaulted both patients and staff since being admitted in 2004. When he stopped taking his anti-psychotic medicines in March 2011, his violent behaviors and delusions escalated. The patient started threatening one of his regular attendants, an African-American PSA. He also said he planned to "f*** up any [n word] working with him." A coordinator, who was familiar with many similar threats, believed the patient’s only credible threat was specific to his regular PSA, but the threats were reported to other managers and the decision was made that the patient should not have access to African-American staff during the weekend to ensure staff safety. The next day, a nurse told a charge nurse to send three PSAs to different wards, including one to F-8, and instructed that the PSA assigned to F-8 had to be white. The charge nurse objected and refused to comply. She again refused when the nurse directed her to send the person "with the lightest skin." The patient did not commit any assaults over the weekend. Bench trial. The employees initially sued in federal court, but the parties agreed to voluntarily dismiss the state-law claims and refile them in state court. After a six-day bench trial, the trial court dismissed all of the WLAD claims. It found that the staffing directive ended after the weekend and "none of the plaintiffs have been on a shift in which a similar staffing assignment was made" since April 2011. It rejected the race-based disparate treatment claim, finding no tangible adverse employment action severe enough to support the claim and finding that "safety was the overriding factor," not race. It also dismissed the hostile work environment claim. Staffing directive was facially discriminatory. Reversing in part, the Washington Supreme Court found that substantial evidence supported the trial court’s factual findings but nonetheless concluded that the race-based staffing directive was discriminatory on its face in violation of the WLAD. The state made decisions that explicitly prevented certain employees from working on a particular ward one weekend due to their race. The trial court found that the staffing orders were "likely an overreaction" to a perceived threat, but that did not change the discriminatory nature of the staffing decisions. Such "overt race-based directives" affecting staffing constituted discrimination in "terms or conditions of employment because of . . . race." Moreover, the state had "no valid legal justification for its discrimination." The BFOQ defense applies only to sex discrimination, not race discrimination, and none of the other statutory exceptions applied. But no hostile work environment. While the disparate treatment claim was revived, the state high court affirmed dismissal of the HWE claim. It agreed with the trial court that a staffing decision over the course of a single weekend did not rise to the level of severe or pervasive harassment required to support a hostile work environment claim.

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