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Excerpted From: Julie A. Gafkay, Balancing Customer Care and Employee Civil Rights: Race Discrimination When an Employer Grants a Patient or Customer Request Based on Race, 98-JUN Michigan Bar Journal 18 (June 2019) (31 Footnotes) (Full Document)

JulieGafkayWhen a patient or customer is denied service or receives inferior service based on race or color, it seems obvious he or she should be protected under the Civil Rights Acts. What about discrimination in the inverse situation: when a patient or customer preference for services based on race is granted and an employee is excluded from performing his or her job duties? This article explores whether employees excluded from providing services to patients or customers based on race or color have a discrimination claim under the Civil Rights Acts.

Various federal and state laws protect an employee from race discrimination in the workplace. Courts have routinely applied the same standard of proof under federal and state laws for establishing race discrimination in employment. While this approach seems logical, some courts, like the U.S. Court of Appeals for the Sixth Circuit, have taken a different approach to deciding whether a claim exists for intentional discrimination in employment when the plaintiff presents direct evidence under 42 USC 1981. The slight disparity in application can make the difference between whether an employee who is reassigned or not assigned based on race has a claim or not. 

[. . .]

Employers may suggest that a patient or customer request for service based on race should be granted in some circumstances, especially if the employee suffers no job detriment such as a reduction in pay, demotion, change in title, or discharge. In many circumstances, a patient's or customer's racial preference is accompanied by racial slurs. Employers may unilaterally reassign an employee to offer protection and defend its position by suggesting that if the employee was not reassigned, he or she may allege racial harassment.

The flaw in this reasoning is the failure to recognize that complying with a racist request gives power to the patient's or customer's prejudice. If the employer is concerned about racial harassment by the patient or customer, it should inform the employee of the request and allow the employee the option to decide whether he or she will provide services. Unreasonable patient or customer demands are routinely rejected; a request based on race is no different and should be denied outright.

[. . .]

Race discrimination in the workplace is illegal under the Civil Rights Acts. An employee reassigned or not assigned based solely on race because of a patient or customer request should be able to pursue a claim for intentional discrimination. If an employee is prevented from bringing a claim because he or she did not suffer a materially adverse change in employment, the very discrimination proscribed by the statutes goes unchallenged. To fully vindicate the purposes of the Civil Rights Acts and eliminate discrimination, an employee reassigned or not assigned based on a racial preference should have a remedy under the Civil Rights Acts.

Julie A. Gafkay owns Gafkay Law, PLC, a statewide, employee-side, employment discrimination practice located in Saginaw County.