The EEOC has filed suit in federal court against a home care provider, alleging it unlawfully discriminated against employees when it changed their work assignments to accommodate client preferences. EEOC v. ACARE HHC d/b/a Four Seasons Licensed Home Health Care, 23-cv-5760 (E.D.N.Y. July 31, 2023).

The suit alleges the home care provider “routinely would accede to racial preferences of patients in making home health aide assignments, including by removing Black and Hispanic home health aides based on clients’ race and national origin-based requests. Those aides would be transferred to a new assignment or, if no other assignment were available, lose their employment completely.” The EEOC contends this conduct violates Title VII of the Civil Rights Act of 1964. The EEOC seeks compensatory and punitive damages for the affected employees, and injunctive relief to remedy and prevent future discrimination based on employees’ race and national origin.

The issue of accommodating patient or client preferences in making assignments is a familiar one for healthcare providers. We previously reported in 2016 about a case in which a federal district court ruled a respiratory therapist could proceed with her civil rights claims because questions remained about whether her hospital employer intended to honor a patient’s request that he not be treated by black employees. That case arose under 42 U.S.C. §1981, which prohibits discrimination in making and enforcing contracts but, unlike Title VII, does not require evidence of an “adverse employment action.” Thus, the court rejected the hospital’s defense that the plaintiff did not suffer an alteration in terms and conditions of employment, which is currently required under Title VII. The Supreme Court recently accepted for review  a case that challenges the Title VII adverse employment action requirement. Muldrow v. City of St. Louis, Mo., No. 22-193. Removing the adverse employment action requirement could make it easier for employees to prevail in cases where healthcare providers change employee assignments based on patients’ racial or national origin preferences.

While healthcare providers strive to accommodate a wide range of patient preferences, they must be careful that such accommodations do not run afoul of applicable state and federal employment discrimination laws. Much has been written in scholarly journals and trade publications regarding strategies for dealing with patients refusing treatment by providers based on race and national origin. One such resource is the American Medical Association’s article, “When Patients Are Prejudiced, Here’s What Physicians Should Do.” This article and the EEOC’s suit against this home care provider are reminders of the importance of training all patient-facing staff on your organization’s commitment to maintaining a work environment free from unlawful discrimination.

Members of the Jackson Lewis Healthcare Industry Group routinely advise clients on anti-discrimination policies and diversity, equity, and inclusion strategies and provide training on preventing workplace discrimination. Please contact your Jackson Lewis attorney if you would like to learn more about these services. 

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.