It’s a classic case of damned if you do, damned if you don’t. Employers have an obligation to protect their employees from discrimination or harassment by third parties, including patients, customers, clients, vendors, and contractors. But in the case of Blackburn v. State of Washington Dept. of Social and Health Servs., the employer’s attempt to do so resulted in an employee lawsuit for staffing discrimination.
A state-run psychiatric hospital, which treats patients with serious, long-term mental illness, adopted a staffing directive that restricted Black and dark-skinned employees from working with a violent and racist patient. (This patient had actually threatened to kill a Black employee.) A group of employees sued the hospital for discrimination because the directive required race-based staffing assignments. The federal court, however, came to the rather obvious conclusion that, “Not having to work with a violent, racist patient is not an adverse employment action.” While the directive did distinguish between races, there was nothing that showed that the Hospital intended to treat minority employees less favorably than White employees. The court also found that the hospital had offered a legitimate reason for the staffing decision – their concern about the safety of their Black and dark-skinned employees.
Frankly, if the hospital had continued to assign Black employees to the racist patient, it is all too likely that some of those employees would have claimed that the hospital failed to protect them from harassment. Fortunately, the court recognized that not all race-based decisions constitute illegal discrimination as a matter of course. While courts have held that it is illegal for employers to give in to customer-based racial preferences, race-based safety concerns are a different matter. But employers should keep in mind that race- or gender-based staffing decisions that result in an employee being assigned to a less favorable shift or department, or one that affects the employee’s opportunity for advancement, might lead to viable claims of discrimination. As always, it’s a balancing act.