I’ve written on topics ranging far and wide across the long-term care spectrum. But I’m pretty sure this will be my first foray into the world of fake butt accusations.

A suit filed earlier this month in New York alleges a nurse aide named Milouse Laguerre was subjected to workplace-related sexual harassment.

The catalyst? Other CNAs who insisted her gluteus maximus exceeded the maximus limit. There was simply no way its dimensions were within the boundaries of what her Mama could have given her, her co-workers allegedly claimed.

Not only did they judge that her backside’s dimensions were beyond what nature intended, they demanded for months that she provide the name of the physician behind such robust proportions. When Laguerre rejected both the allegations and the request, they allegedly proceeded to make her life a living hell.

So, is this really a story of buttocks envy gone bad? It could be that, too. But after reading the court documents, I’m not sure we’ve gotten to the bottom of this story.

You see, it appears that some of her colleagues were unhappy with Laguerre, who happens to be Haitian, being offered full-time employment in the facility three years ago. They allegedly claimed Haitians are “ugly.” They also insisted that Haitians, in the vernacular of Sir Mix-A-Lot, don’t have “back.”

While the facility’s CNAs were supposed to work as a team, her requests for assistance were largely ignored.

Moreover, when she repeatedly asked management for relief, her requests went nowhere. In fact, she was suspended, then fired, according to her attorney.

For other providers, there are two lessons to glean from this unusual case.  

The first is that turning a blind eye to harmful statements and toxic interactions among employees is a risky strategy that may lead to legal consequences. 

The second is that when employee conflicts persist, human resources must play a proactive role in addressing and resolving disputes, preventing them from festering into more significant issues.

This is an alleged situation that never should have been tolerated by those in charge, much less allowed to worsen.

And now the lawyers are involved. By the time this matter is resolved,  there’s a very good chance the facility will find itself paying out the, well, you know.

John O’Connor is editorial director for McKnight’s. Read more of his columns here.

A Caucasian man requests that African-American nurses not be included in comfort holding treatment for his premature baby.

A nursing home resident refuses treatment by a physical therapist wearing a hijab.

Patient-centered care encourages providers to partner with patients and their families to identify and meet the full range of patient needs and preferences. A positive patient-provider relationship has been shown to increase transparency and communication and improve overall health outcomes. For this reason, state and federal lawmakers have recognized a patient’s “right to choose.” However, state and federal law also prohibits discrimination and harassment based upon race, sex, age, disability, and religion, among other protected class categories.  

Healthcare providers are rightfully concerned with what appears to be a conflict between honoring patient preferences and protecting employee rights. This article examines patient preferences and patient conduct that has led to employment litigation and includes recommendations to help healthcare providers minimize risks.  

Racial Preferences

The issue of racial preferences in medical care is not new, but recent studies related to patient care offer a new lens for evaluating the issue. Some research has suggested that race concordance,[1] and honoring a minority patient’s racial preferences in particular, may improve health outcomes and reduce health disparities.[2] Courts have not specifically addressed the question of whether a healthcare provider can honor a patient’s racial preferences in an effort to address health disparities without violating anti-discrimination employment laws. In other contexts, however, courts have consistently found that an employer’s obligation to provide a discrimination-free workplace takes precedence over a patient’s racial preferences.

In 2010, the Seventh Circuit rejected a nursing home’s policy of honoring the racial preferences of its residents when assigning care providers.[3] The plaintiff in the case was an African-American nurse assistant given written instruction that a resident in her assigned unit “Prefers No Black CNAs.” The nursing facility argued that state regulations governing long-term care facilities give residents the right to choose their healthcare providers.  The court disagreed, finding that catering to the racial preferences of residents is an insufficient justification for otherwise violating Title VII protections against disparate treatment.

More recently, in 2013, an African-American nurse filed a charge against a Michigan hospital alleging that for more than a month no African-American nurses could care for a Caucasian baby at the father’s request.[4] The matter settled, but it is a reminder that patient preferences should be evaluated against state and federal anti-discrimination laws. To date, courts have been unwilling to treat a patient’s right to choose as a legitimate reason for race-based employment practices.

Gender Preferences

While courts have ruled that employers cannot discriminate based on patient preference relating to race or national origin, gender preference has been open to more interpretation. A healthcare employer can honor a patient’s request to not have an opposite-sex caregiver assisting with care without violating anti-discrimination employment laws, but only as to care that involves issues of intimate personal privacy, such toileting or examination of private areas.[5] There must be a specific patient request related to personal privacy, rather than a blanket policy of exclusion. Id.

What happens, however, if a hospital patient or nursing home resident refuses treatment from a transsexual or transgender care provider or demands reassignment of a care provider because of non-conforming gender behavior? Courts have held that discrimination because of gender non-conformity or gender stereotyping is sex discrimination.[6]  At the close of 2014, the EEOC filed two sex discrimination lawsuits related to discrimination against transgender employees, including a claim against an eye clinic alleging the clinic fired an employee for failing to conform to gender stereotypes.[7]  As the workplace continues to change, healthcare employers should remain mindful of this evolving area of the law and carefully evaluate patient preferences that could involve gender stereotyping.

Religious Preferences

Research has shown that healthcare providers can improve a patient’s healthcare experience by understanding and honoring the patient’s religious values and beliefs.[8] Healthcare providers are also required to accommodate employees’ sincerely held religious beliefs or practices, which can extend to dress (i.e., a Christian cross or a Muslim hijab (headscarf)), provided that doing so does not create an undue hardship for the employer.  

In a healthcare setting, an employee’s request for a religious accommodation that interferes with the ability to safely provide care or treatment would present an undue hardship. However, patient religious preference has not been found to be a cognizable basis for denying an employee’s religious accommodation request or a legitimate basis for reassigning an employee of a different faith. Ultimately, honoring a patient’s preference to reassign a care provider because the care provider is of a different faith than a patient or because the care provider wears a visible symbol of that faith can lead to claims of employment discrimination.

Duty to Prevent Harassment

Honoring discriminatory patient preferences can prove problematic, but requiring an employee to continue to provide care when a patient is openly discriminating against or harassing an employee can also lead to costly litigation.  It is illegal for a patient to harass an employee on the basis of any protected class category, including race, color, national origin, sex, religion, age (over 40) or disability. This includes unwelcome touching, sexual comments, leering, racial or religious jokes or epithets, ethnic insults, or comments about an employee’s disability or perceived ability.

The issue of harassment of employees by patients is often more complicated in healthcare settings, particularly long-term care settings, where inappropriate comments or behavior may be attributable to a patient’s deteriorated mental condition, such as dementia or Alzheimer’s disease. However, a patient’s or resident’s mental condition will not shield a healthcare employer from liability. Ultimately, a healthcare employer has a duty to investigate and respond to any complaint of harassment made by an employee.

Steps Healthcare Employers Should Consider

As the patient-centered care movement continues to grow, healthcare providers should evaluate patient preferences on a case-by-case basis and understand the laws implicated by each individual patient request. In addition to having policies in place to address patient preferences and patient conduct, healthcare employers should perform ongoing training on how to respond to patient harassment or discriminatory animus toward employees, and complete thorough investigations when complaints arise.  

Building a culturally competent workforce that is trained to serve a diverse population can also limit a healthcare employer’s exposure to employment-related litigation and claims, in addition to improving health outcomes. Failing to address and manage patients’ discriminatory preferences or harassment of healthcare workers, however, can put healthcare providers at risk of costly employment litigation. 

Lisa Kathumbi is an associate at Littler Mendelson P.C., and represents employers across jurisdictions in a broad range of labor and employment matters. She can be reached at lkathumbi@littler.com or 614-463-4232.

Had such comments never been expressed in those emails, the probability of liability against the employer may have been substantially reduced. Many emails have proved to be particularly damaging in plaintiff lawsuits, because the writers have expressed themselves informally without regard to their professional roles within their companies.

Old emails have an ongoing life and can be used in lawsuits years after being written. Nursing home management should realize that emails can be stored not only on the sender’s computer, but also on the company’s Internet Service Provider’s (ISP) server and on a recipient’s computer. Simply deleting your emails does not mean that those emails have ceased to exist. There can be dozens of copies in the blogosphere, thus making each one easy to recover by plaintiffs. To avoid such emails coming into the wrong hands, a company should have a reasonable policy of purging old emails.

There should be specific rules and protocols established by nursing home management to diminish the likelihood for being the target of workplace lawsuits. For example, supervisors must avoid intemperate and inflammatory email comments about employees when communicating with other managerial representatives. There are numerous conversations that can prove costly if one’s choices are impolitic.

Supervisors should be guided by the concept that if they don’t want their conversations broadcast on CNN, then those conversations should not be in an email. Furthermore, you never know where your email messages will appear. Will a secretary forward those messages to other employees? Will any of those employees forward the messages to an attorney representing an employee? Will those messages end up as evidence in court? And finally, will those messages determine the size of a settlement? To protect oneself, it is essential that one be guided by a sense of discretion.

For example, if you’re seeking a supervisor’s opinion about an employee’s work performance, ask for it orally. Make sure that the supervisor understands that no personal judgments are to be included in a written evaluation. Matters of efficiency, responsibility and productivity can be and should be evaluated. However, the employee’s physique, attractiveness, religion and sexual orientation should never be part of an evaluation — either verbal or written.

If an employee sues management for any form of harassment — be it sexual, religious or racial or for wrongful termination — do not discuss tactics for dealing with such suits via email. Do not question the litigant’s supervisor(s) via email. Do not issue an email asking for embarrassing information about the litigant. Do not exchange derogatory or insulting comments with management about the litigant. Your words could come back not only to haunt you, but also to cost you and your company a great deal of money.

The present administration in Washington, through its appointments to the National Labor Relations Board, has given significant leeway to unions when it comes to organizational efforts in the workplace. When union organizers begin their campaigns to organize nursing home employees, they will look for any improper behavior on the part of management. Therefore, it is essential for management to act with strict discretion and absolute adherence to the rules and regulations issued by the NLRB. And that includes not discussing tactics and strategies for dealing with organizing efforts in emails. Emails containing intemperate remarks frequently go astray, and you never know who the ultimate recipient will be.

A similar policy applies if your workforce is already unionized and new contract negotiations are just around the corner. You may orally discuss those negotiations either in person or on the phone with your representatives, but not in emails. Anything that you put in an email could become the subject of a subpoena or be hacked into by your adversaries.

In management’s day-to-day dealings with employees, you should never criticize an employee via email. If an employee collects such emails over a period of time, that employee and an attorney could use the cumulative effect of those messages to indicate that management had a biased opinion of the employee and was attempting to pressure the employee to resign.

While workplace lawsuits and aggressive union-organizing campaigns are now commonplace in the nursing home industry, management can significantly enhance its defenses through carefully maintained protocols, such as those outlined in this article.

Howard Kurman is a co-founder of the mid-Atlantic law firm of Offit Kurman. The firm has offices in Northern Virginia; Baltimore/Washington; Wilmington, Delaware; and Philadelphia, Pennsylvania.  

The court’s ruling — which will likely be announced next June — is surely going to be watched closely by operators and their legal guns. That’s because at many long-term care facilities, the line between bosses and subordinates can be blurry. A decision that creates new liabilities could unleash a menagerie of workplace flowchart headaches.

Currently, an employer is held accountable if a supervisor torments a subordinate. But the employer is off the hook if the harassment takes places between two employees at the same level — unless it can be shown the employer turned a blind eye to the point of being negligent.

The lower courts have struggled to find consensus when it comes to defining a supervisor. The First, Seventh and Eighth Circuit Courts adopted a narrow definition.  But the Second, Fourth and Ninth Circuits have taken a more open stance.

In the pending national Supreme Court case, the victim was Maretta Vance, an African-American employee at Ball State University. Vance was a food service worker who claims she was harassed by Saundra Davis, another employee. Davis, who is white, insulted Vance with references to the Ku Klux Klan, a white supremacist organization.

An appellate court in Chicago ruled last year that the university could not be prosecuted here. The court said negligence could not be proven and that Davis was not the supervisor of the plaintiff, as she did not have the power to hire or fire her.

“It is clear that Ms. Davis was not qualified as a supervisor,” Gregory Garre, a lawyer for the university, said during last week’s oral arguments.

But Daniel Ortiz, a lawyer for Vance, countered that “Davis told her what to do and what not to do … Davis gave orders in the kitchen.”

Justice Samuel Alito asked what the most unpleasant thing was that Davis could have assigned Vance to do.

“Could it be chopping onions all day, every day?” he asked.

“Certainly,” Ortiz answered, adding that cleaning the toilets was also on the list of unpleasant tasks.

Chief Justice John Roberts asked if an employee tasked with choosing music for his workplace could be considered a supervisor if he told another employee: “If you don’t date me, it’s going to be country music all day long … that affects the daily activities of that other employee.”

In contrast, Justice Elena Kagan suggested that the lower court’s test might be too lenient on employers.

Probably the last thing operators need right now are additional labor-related concerns. But this ruling just might give many communities another new knot to untangle: At what point do employees morph into supervisors?