Legal Issues Related to Assigning Patients According to Their Preferences on Race

What if a patient refuses to be treated by a provider of color?

As unbelievable as it may seem in this day and age, there are patients who make it clear that they do not want to be treated by providers of color or of certain nationalities. This issue can put clinics, hospitals and health systems in a difficult catch-22 — respecting the desired preferences of patients while respecting the rights of those employed to provide care to those patients.

This is an issue that involves ethics as well as the law. As to the ethical issues, it is left to the employers of health care providers to determine what duties may be owed and to whom.

As to the legal issues, the courts and the Equal Employment Opportunity Commission have begun to consider the impact of Title VII of the Civil Rights Act on assigning patients according to their preferences on race or membership in other protected classes.

Once a patient expresses a preference to not be treated by a provider of color (or an outright refusal to be treated by such a provider), it becomes an employment issue for the employer of the provider.

Some health care employers have gone so far as to create policies to deal with that issue. Some policies require the reassignment of patients to a provider with which the patient is more comfortable. While that may not necessarily affect the income of the provider, as that provider may see other patients, it does, without a doubt, have an impact on other aspects of that provider’s employment. Although well-intentioned, those policies will likely violate state and federal anti-discrimination laws.

To reassign a patient to a provider to whom the patient does not object due to the race or national origin of the provider (or membership in any other protected class) would clearly discriminate against that provider. In the non-health care setting, moving an employee of color because another employee objects to working with the employee of color would be discriminating against the employee of color. Likewise, not allowing an employee of color to interact with certain customers would also be discriminatory.

Although this is a decision to be made by employers of health care providers, the best advice from a legal (and likely an ethical) standpoint is to respect the employee and refuse to accede to the wishes of patients who express a preference, or make demands, about who should be providing them care.

Race, nationality, religion or membership in any other class of individuals protected under law should not play a part in determining which provider is assigned to which patient. The policy should be that, if the patient refuses treatment or care by a provider based upon that provider’s membership in a protected class, that patient should be informed that the health care employer does not discriminate against patients or employees based upon race, color, national origin or membership in any other protected class and that the patient is free to obtain care elsewhere. That should satisfy the ethical obligations of the employer of health care providers while protecting health care employers of liability for violations of those federal and state laws governing discrimination in the workplace.

In cases in which a patient is abusing or otherwise mistreating a provider, the patient should be discharged from the practice consistent with the requirements concerning patient abandonment.

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