Does a resident have the right to choose the race of the nursing staff caring for her? The Seventh Circuit Court of Appeals gave just gave us the answer, in Chaney vs. Plainfield Healthcare Center, a case originating in a local nursing facility. The case involved Marjorie, a resident who did not want to be cared for by black nursing personnel, and Brenda, a black CNA. Plainfield believed Indiana’s resident rights rules obligated it to honor Marjorie’s wishes and so it did not assign black nursing personnel to Marjorie. Brenda complied with this policy, fearing that she would be fired if she disagreed. This changed when, after three months on the job, a nurse accused Brenda of cursing while assisting another resident. Brenda was terminated. She then sued the facility arguing, among other things, that the facility’s policy of going along with Marjorie’s racial preferences violated federal civil rights laws. Suit was filed in federal court. That court felt the facility’s case was sufficiently strong that it dismissed the case without a trial. Brenda appealed, arguing that she should have been allowed to take her case to trial.

The court of appeals agreed with Brenda. It cited four reasons in ruling against Plainfield on the resident rights issue. First, in a contest between resident rights rules and civil rights laws, the court said federal civil rights laws trump state regulations (The facility argued that federal law also requires facilities to follow resident preferences, but the court disagreed.) Second, the court said Plainfield misinterpreted the resident rights rules. Those rules, according to the court, do not require a facility to staff in accordance with the racial preferences of residents. The rules merely require the facility to allow a resident to hire providers of his or her choice. In other words, Marjorie was free to hire private duty nurses on her own but the civil rights laws prevented her from forcing Plainfield to provide an all white staff. Third, the court rejected Plainfield’s claim that, in requiring black nurses to work with Marjorie, it would be exposing them to harassment. The court suggested several strategies facilities could use to deal with racially biased residents. Fourth, the court noted that, in following Marjorie’s wishes, Plainfield had put itself at risk of violating its duty to provide good care at all times to its residents. If it followed its original policy and an emergency occurred at a time when no white aides were available, the facility would be put in the untenable position of having to choose between either following Marjorie’s preferences or delivering care by way of the nearest nursing staff.

Plainfield argued that the court should view its policy toward Marjorie as a reasonable and good faith effort to comply with Indiana law. The court said “good faith” is not a defense in this case and, interestingly, the court took special note that it appeared Plainfield had not asked the state department of health for its opinion whether the resident rights rules required Plainfield “to cater to its residents’ racial preferences.”

Unless and until this decision is reversed by Supreme Court, facilities would be well advised to avoid staffing based on residents’ racial preferences. For further information, please contact John H. Sharpe at Taft Stettinius & Hollister, 317-713-3470, jsharpe@taftlaw.com.