Employers Can Face Variety of Claims
April 1, 2025 3 minutes read
By Greg Freeman
Given the extensive framework of anti-discrimination laws, an employer can face several legal risks when acquiescing to the discriminatory or biased preferences of patients or otherwise requiring employees to accommodate race or other protected class demands by patients, says Chris Kmoch, JD, attorney with the Smith & Malek law firm in Boise, ID.
Discrimination Claims
If an employer accommodates a patient’s objection by reassigning the provider or by taking any action that suggests that the provider’s membership in a protected class is grounds for discrimination, the employer could be in violation of federal, state, or local civil rights laws. If an employer were to dismiss, reassign, or treat a provider unfairly due to their protected status, the provider could file a discrimination claim with the Equal Employment Opportunity Commission (“EEOC”) and/or corresponding state agency.
Patient Rights and Religious Accommodations
While competent patients generally have the right to choose their healthcare provider, employers also have obligations to protect their employees from unlawful discrimination, Kmoch says. If a patient objects to a provider based on their protected class, the employer must carefully navigate this situation.
Reasonable Accommodation
In some cases, such as religious beliefs, employers are required to make reasonable accommodations to ensure that both the patient’s preferences and the provider’s rights are respected. For example, a patient’s objection because of religious beliefs could potentially be addressed by assigning them a different provider. In this scenario, the Bonafide Occupational Qualification Defense (BOQD) may be successfully asserted by an employer in response to a female provider’s claim of unlawful discrimination, Kmoch says. The BOQD is a statutory defense whereby an employer admits to discrimination based on an employee’s membership in a protected class.
For example, the employer admits that a female provider was reassigned from treating a male patient because the male patient asked for a male provider, Kmoch explains. But the employer claims the discriminatory classification was reasonably necessary for the efficient operation of the employer’s business such that a person outside of the favored protected status could not perform the same services successfully.
“Importantly, the BOQD is usually not valid with respect to racial discrimination but could be used in the small number of circumstances in which patient privacy is a concern,” he says. “For example, courts have held that for certain workers, such as nursing assistants, hospital delivery room nursing staff, and others involved in assisting individuals with dressing, bathing, and the like, gender may be a valid BOQD for accommodating patients’ privacy requests.”
Employer’s Duty to Ensure Equal Treatment
Employers must balance the rights of the patient to receive healthcare and the provider’s right to equal employment opportunities. If the employer chooses to accommodate the patient’s objection, they must ensure that the provider is not penalized or discriminated against in any way that violates the law, Kmoch says.
Hostile Work Environment
If an employer consistently or systematically accommodates patients’ objections to a provider based on the provider’s membership in a protected class, this can potentially create a hostile work environment for the provider that could result in legal liability for the employer, Kmoch says.
Public Perception and Reputational Risk
While not a direct legal consequence, an employer’s actions in response to such situations can have significant reputational ramifications, Kmoch says. Discriminating against or appearing to support discrimination against employees based on their protected class (or any other characteristic, even if not protected by law) could damage the employer’s reputation with its employees and patients, could result in negative publicity, and could diminish patient trust, he says.
Source
- Chris Kmoch, JD, Smith & Malek, Boise, ID. Telephone: (208) 925-2737.
Given the extensive framework of anti-discrimination laws, an employer can face several legal risks when acquiescing to the discriminatory or biased preferences of patients or otherwise requiring employees to accommodate race or other protected class demands by patients.
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