​A Healthcare Risk Control member recently asked for help in crafting a policy to handle requests from patients or families for different providers because of the provider's race, ethnicity, or religious affiliation. The member notes that such requests are increasing at the organization and would like to create a no-tolerance policy regarding this behavior.

In our response, we note that many issues are involved, most notably federal Civil Rights Act of 1964 protections and staff rights to a workplace free from discrimination. In particular, Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, and national origin—that is the crux of the issue for the purposes of the policy. Working with legal counsel, it will be important to reference that law, along with any applicable state laws, when writing the policy.

One way to respond to a patient's racially motived request for a care provider would be to decline based on the facility's requirement to abide by federal and state laws, as well as the facility's nondiscrimination policy regarding providing services to patients and its nondiscriminatory employment policy. A facility may refuse to accede to patient requests that fall outside of the facility's norms, as stated in its nondiscrimination policies. To do otherwise can have the effect of creating a workplace climate that tolerates racial bigotry.

This situation carries risks no matter which way the organization proceeds (i.e., reject the patient request or discriminate against the employee). Practically speaking, the decision to ignore the patient's request increases the risk of emotional and/or physical harm to the employee. Moreover, if a patient does not trust his or her caregiver, greater dissatisfaction and exaggerated claims of negligence and harm may be directed toward that staff person and the organization. This can lead to a greater risk of litigation. Nevertheless, race-based staff assignments are discriminatory and a detriment to employees. Discriminatory behavior on the part of employers degrades employee morale and carries risk of litigation against the employer.

Two cases covered in our HRC Alerts speak to the issue. In short, courts have ruled that, regardless of intentions, it is discriminatory to use the staff member's race to make staffing decisions; the organization's legal counsel will be able to provide specific information on relevant case law in the facility's jurisdiction. The cases were covered in HRC Alerts on December 16, 2015, and September 21, 2016.

One health system's policy, which ECRI Institute has not formally reviewed, addresses discrimination not only patient treatment but also on a broader, organization-wide level. It may prove an additional useful reference when crafting policies.

The recommendations contained in Ask HRC do not constitute legal advice. Facilities should consult legal counsel for specific guidance and develop clinical guidance in consultation with their clinical staff.