Discrimination by Proxy

By: David B. Pogrund

Recently, the 7^th Circuit Court of Appeals ruled that even though an Employer did not discriminate that the Employer could still be liable for Discrimination by Proxy where the Employer complied with the racial preference of its customers or clientele. Brenda Chaney vs. Plainfield Healthcare Center, US Court of Appeals for the Seventh Circuit (July 20, 2010).

Plainfield Healthcare Center is a nursing home where a nursing home resident expressly advised the nursing home that she did not want assistance from any Black Certified Nursing Assistants. Plainfield Healthcare Center did not discriminate in its hiring practices as it had many Black Certified Nursing Assistants; however, the nursing home did comply with the request of one of its nursing home residents by placing signs on their doors which stated “No Black Assistants should enter this resident’s room or provide her with care.” The nursing home attempted to justify this practice by saying firstly it was not its racial bias, but that of its resident, and that a resident should be able to have a say in his/her personal healthcare.

The Lower District Court ruled in favor of the nursing home; however, the 7^th Circuit Court of Appeals overturned the lower court’s decision and held that it is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based upon race. The 7^th Circuit Court of Appeals cited to several similar cases of precedent in which various Circuits of the Federal Appellate Courts had held companies liable for discrimination claims for the practice of Discrimination by Proxy. To be specific, previous Federal Courts have held that discrimination by proxy is a violation of Title VII of the Civil Rights Act in the following situations:

• Evidence of a segregated sales force to cater to the preferences of customers of the company was considered Discrimination by Proxy under Title VII;
• An employer’s practice of assigning “Get out the Vote” phone calls based upon race violated Title VII.

Plainfield Healthcare Center argued that there were some cases supporting Discrimination by Proxy; however, these cases did not involve race discrimination but rather sex discrimination in the healthcare setting. Clearly, these cases held that gender is a legitimate criterion-a bonafide occupational qualification (“BFOQ”) for accommodating a patient’s privacy interest. In other words, a woman could request to have a healthcare provider that is a woman to protect her privacy interest as a woman. Title VII forbids Employers from using “race” as a BFOQ.

The 7^th Circuit Court of Appeals made a distinction between the privacy interest that is offended when one undresses in front of a doctor or nurse or healthcare provider of the opposite sex and stated that this does not apply to race. “Just as the law tolerates same sex rest rooms or same sex dressing rooms, but not white only rooms to accommodate privacy needs, Title VII allows an Employer to respect a preference for same sex healthcare providers but not same-race providers.”

What is the impact of Chaney vs. Plainfield Healthcare Center? The answer is that employers may not accommodate their clients, customers or patients requests for a Doctor, Lawyer, Sales Representative, Nurse, Accountant, etc. based upon Race, Religion, National Origin or any other classification other then sex where it relates to privacy rights described above.

After your review of this letter if you have any questions or comments please contact me to discuss.

Additionally, I provide reasonably priced employment law seminars for business managers of companies to avoid company liability for employment discrimination and harassment claims. Conducting such a seminar at your business is considered by courts to constitute a partial defense to any claims of discrimination/harassment. If you are interested in conducting such a seminar at your company, then please call me.