In-home care providers may have another legal concern to watch out for during the remainder of 2020 and beyond.
At a time when states are seeing widespread protests against police violence toward Black Americans and other people of color, workplace discrimination is increasingly being thrust into the spotlight. With conversations surrounding deep-rooted racial injustice growing louder, discrimination lawsuits may also become much more common.
Apart from the ongoing protests, an increase in discrimination lawsuits is also likely due to a recent U.S. Supreme Court decision. On June 15, the Supreme Court ruled 6-3 that Title VII of the Civil Rights Act of 1964 protects LGBTQ workers from workplace discrimination.
Thanks to the decision, LGBTQ individuals who live in one of 25 states that offers no clear protections against workplace discrimination based on sexual orientation or gender identity can now file suits in federal court.
In light of the current landscape, in-home care providers should make concrete updates to their companies’ equal employment opportunity policies, according to Angelo Spinola, an attorney and shareholder at law firm Littler Mendelson.
“Equal employment opportunity policies, to the extent that they do not include gender identity and sexual orientation … those should be included in your protected categories,” Spinola said during a recent Littler Mendelson webinar. “You have a list of non-harassment and anti-discrimination policies, … [and] these terms should be there if they’re not already. It’s better to be over-inclusive than under.”
Typically, when workers experience discrimination, the first stage of seeking recourse is filing a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) or their appropriate state agency.
Between 2010 and 2017, more than 1 million cases were filed with the EEOC or local partners alleging violations of federal anti-discrimination laws.
Some of those were related to in-home care businesses, too.
While all types of industries can perpetuate workplace discrimination, in-home care providers are susceptible to cases where the company discriminates against caregivers under the guise of customer service.
In instances where a provider gives into a client’s request for a new caregiver based on race or sexual orientation, the company is often liable for discrimination, according to Spinola.
“What comes up a lot in this industry is the issue of the client being racist or a harasser, choosing or requesting only a certain type of caregiver — and the implication that has on the agency,” Spinola said. “Can the agency be held liable for the actions of that client? Typically, yes, if it’s discriminatory. What a lot of [companies] don’t realize is that you don’t have to be the perpetrator.”
In 2018, R. MacArthur Corp. — a franchisee of Home Instead Senior Care — was ordered to pay $340,000 in damages to five former employees. The caregivers reported that an Alameda, California-based client sexually harassed them and made racist comments while they were providing care, according to an EEOC lawsuit.
Generally, some providers may comply with a discriminatory request from a client because they take “the customer is always right” mentality, Spinola told Home Health Care News in a follow-up interview. They may fear upsetting the client, who then cancels service, leading to a bottom-line hit for providers.
“I’ve definitely spoken to providers who feel like it’s a necessary evil that they have to deal with, who think the impact on their bottom line would be too significant if they took a hard stance,” Spinola said. “I would say this, especially in today’s world: What do you want your organization to be known for? There’s far more damage that’s done when an agency says, ‘This is okay with us because we need it financially.’”
One measure providers can take is implementing a written policy that makes it clear the company does not accommodate client requests that violate equal opportunity law.
Aside from liability issues, providers that enable discriminatory workplaces are vulnerable to higher turnover rates. By and large, the home care industry is comprised of women of color and people who immigrated to the U.S. from other countries.
From 2005 to 2015, women of color in direct care grew from 45% of the workforce to 48%, according to statistics from PHI, a New York-based direct-care workforce advocacy organization.
For a home care industry that has often struggled with recruiting and retaining caregivers, having a workplace that isn’t inclusive further compounds these challenges. While home care turnover fell to 64% in 2019, it still remains high compared to many other industries.
“What impact does that have on your turnover,” Spinola said. “[People of color] constitute the majority of the home care workforce. Providers need to ask, ‘What does that do to morale or productivity?’ They should be thinking about putting the company’s values and employees first.”
PHI Vice President of Policy Robert Espinoza echoed similar sentiments.
“Workplaces that are fair, diverse and free of discrimination of any type will do a much better job of recruiting, supporting and retaining direct care workers — an important consideration given the growing workforce shortage in this sector,” Espinoza told HHCN in an email.
By caving to a client’s request for a new caregiver because of race or sexual orientation, home care operators effectively condone their clients’ views, in turn advancing discriminatory behavior, he noted.
While it falls outside of workplace discrimination, providers should also be active in addressing accusations from clients.
“Either side of the equation,” Spinola said. “There’s a fiduciary obligation that the agency has to protect its clients. I’ve had those cases where the caregiver is alleged to be the bad actor and to have done something that was harassing or discriminatory toward the client. These are less frequent than the caregiver claims. But just like on the caregiver side, if a client complains and has a concern that’s left unaddressed, that can create liability for the agency as well.”
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