Employment Law Daily Nursing supervisor asks SCOTUS to outlaw race-based employment assignments
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Thursday, April 7, 2016

Nursing supervisor asks SCOTUS to outlaw race-based employment assignments

By Pamela Wolf, J.D. An African-American nursing supervisor whose duties were altered because a Caucasian family asked that no African-Americans provide care for a patient has asked the Supreme Court to resolve a circuit split over whether race-based assignments based on patient requests violate Section 1981. Below, the Sixth Circuit determined that even if the race-based request was honored, it did not materially affect the supervisor’s job, and therefore she did not suffer an adverse employment action. According to the petition for certiorari in Crane v. Mary Free Bed Rehabilitation Hospital, the Sixth Circuit’s conclusion here conflicts with the rulings of the Seventh and Eleventh Circuits on the same issue. Race-based request. The employee worked as a part-time nursing supervisor at a rehabilitation facility for patients with brain and spinal injuries. In December 2010, another nursing supervisor allegedly told her that a Caucasian patient’s family had requested that no African-American caregivers provide care for the patient. She complained to the nursing director about the request and worked one more shift during the remaining seven days of the patient’s stay. Negligible impact. Below, the Sixth Circuit, affirming the district court’s grant of summary judgment against the supervisor, rejected her assertion that the mere fact that assignments were made on the basis of race—regardless of the impact on her personally—violated her rights under Section 1981. Nor did the court agree with her contention that, as a supervisor, she was responsible for all the patients on her shift, and denying her the right to care for a particular patient was discriminatory even if she did not in fact have to care for that patient. Rather, because any impact on her was de minimis and temporary, she suffered no material change in the terms or conditions of her employment. Notably, it was undisputed that the employee’s work hours, duties, compensation, and benefits did not change in any way. And, after she learned of the request, she worked only one more shift. Moreover, any potential exclusion from the patient’s room was not a removal of responsibilities because she was not responsible for direct patient care. Thus, her discrimination claims based on the assignment failed. What type of impact matters? The case raises the question of what sort of impact is necessary before a race discrimination claim can be pursued. According to the petition, the lower court rulings in this case suggest that “even in the face of blatant, intentional discrimination based solely on race, Petitioner cannot bring a claim because the discrimination against her did not last long.” The petition also asserts that highly skilled African-American nurses were told they could not provide patient care, not because of their skills, but solely due to their race. “This is the epitome of discrimination and constitutes an adverse employment action given the unique circumstances of this case,” according to the petition. Segregation. The petition in addition contends that the supervisors’ and other employees’ reassignment was made specifically due to their race, and that this type of segregation is unlawful under Title VII. Purportedly, the lower court decisions here suggest that segregation of employees based on assignment is lawful under the Civil Rights Act—so long as the segregation is temporary and all other things are equal. This separate but equal rationale first set forth in Plessy v. Ferguson, the petition argues, has long been overruled by cases such as Brown v. Board of Education, which ruled that separate but equal does not mean there is an absence of race discrimination.

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