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Employers may be liable when customers discriminate in the workplace

The U.S. Equal Employment Opportunity Commission (EEOC) recently filed a harassment suit against a Vermont nursing home.

The facility allegedly allowed Black nurses and staff to be “subjected to ongoing and egregious racial harassment,” the agency said in a statement.

According to the EEOC lawsuit, white patients repeatedly directed racial slurs at the facility’s Black nurses and nurse assistants. One patient went so far as to follow Black staff through the facility to berate them and assault Black employees because of their race.

The EEOC charged that facility managers witnessed some of these incidents and fielded numerous complaints from the staff. Black employees were told residents could say what they wanted and, allegedly, one manager told a Black nurse she should be accustomed to being the target of racial slurs because she was “from the South.”

The EEOC asserted that such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of race.

“Federal law requires that an employer take prompt and effective remedial action to prevent race harassment of its employees in the workplace, including where the harassers are patients or customers,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office, in a statement. “Here, Black employees were subjected to ongoing racial abuse for months on end without any effective response.”

The law is not specific on how employers should respond when a third party – such as a customer, patient, or subcontractor – discriminates against an employee. The appropriate response can depend on several factors, including the level of control the employer exercises over the third party.

In a bar or retail setting, for example, management can refuse service and ask a customer to leave. When working with subcontractors, management could ask to have the offending employee disciplined or barred from working on the project.

Health care settings do provide unique challenges, particularly when patients have dementia or other cognitive impairments. Employers need to balance their duty to care for the patient with their responsibility to protect employees. Health care providers should have policies in place to address aggressive and abusive patients. Issues of racial harassment should not be ignored, regardless of a patient’s metal state.

The EEOC has previously pursued issues of race-based discrimination in a health care setting. In 2013, for example, a medical center in Michigan entered into a $200,000 settlement with the agency. In that case, the hospital was said to have complied with a parent’s request to prevent a Black nurse from treating their infant.

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