by Tim Rowan, Editor
Home Care Agency Removed Black and Hispanic Home Health Aides from Assignments to Accommodate Racial Preferences of Clients, Federal Agency Charges
There is a question that appears on social media chat pages with great regularity. What does a home care agency do when a client places it in a difficult legal position? The family of a Spanish-speaking grandmother asks for a Spanish-speaking caregiver. An elderly white gentleman insists on a white, English-speaking caregiver.
For agencies across the country, the only reasonable answer to this question is, "I don't like my choices." Those choices are to either offend, likely lose, a client, or risk violating Equal Employment Opportunity laws. It is common knowledge that home care clients have ample options should they become disillusioned with their current agency. In this situation, an agency has to choose between confronting a client's racial bias and risk losing the client, or accommodating a client and losing a federal lawsuit. In other words, here we have the very definition of "no-win."
With a recent action, the EEOC has put our entire industry on notice which option it expects. On July 31, the federal agency issued a public news release announcing it has filed a lawsuit against a New York agency. Four Seasons Home Care is a licensed personal care agency under a corporate umbrella with sister companies that offer Nursing and Rehabilitation, Certified Home Health, a Dialysis Center, Pharmacy, and an Adult Health Day Care Center. The company was faced with this common dilemma and made a choice of which the EEOC disapproved.
Reaction to the announcement, reprinted verbatim below, has already begun to appear on social media sites, including LinkedIn and home care groups on Facebook. One eloquent comment came from the CEO of an organization that serves an elderly client base made up of elderly people, mostly first-generation, who come from dozens of other countries and speak dozens of languages.
He pointed out that, in a diverse market like New York, it is common for patients and clients to express preference for an aide who can relate to their culture and speak their language. He even mentioned data that shows a connection between culture match and care effectiveness. The reason there has been a push to achieve diversity in the caregiving community expressly for the purpose of culture matching.
What stood out to this writer is that some of the language violates a journalistic rule, specifically the one against revealing the author's bias within an otherwise facts-only story. In the second paragraph, the phrasing "including by removing Black and Hispanic" caregivers implies that the entire lawsuit is about disadvantaging these two groups. By looking beyond any implied meaning and parsing the language as written, one can see that removing these two specific ethnic groups is part of the accusation, but the writer offers no clue as to whether "part of" means 10 percent or 90 percent of the people discriminated against were Black and Hispanic.
Without this knowledge, one is led to assume that the entire accusation is that Four Seasons discriminated against Black and Hispanic caregivers. However, it is just as possible, based on the vague term "including," that other ethnic groups were also victims of discrimination. It is just as possible that some Black and Hispanic caregivers were recipients of bonus work hours when assigned to clients who requested a caregiver with their cultural or language backgrounds. Sadly, the bottom line is that the language of the news release does not actually say what it appears to say. We will have to wait for the case to arrive in court to know what percentage of Four Seasons policy discriminated against minorities and what percentage help them.
NEW YORK — ACARE HHC Inc., doing business as Four Seasons Licensed Home Health Care Agency, a Brooklyn-based company that provides its clients with home health aides, violated federal law by removing aides from their work assignments due to their race and national origin to accommodate client preferences, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.
According to the EEOC’s lawsuit, Four Seasons 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.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of race and national origin.
The EEOC filed suit, (EEOC v. ACARE HHC d/b/a Four Seasons Licensed Home Health Care, 23-cv-5760), in the U.S. District Court for Eastern District of New York, after first attempting to reach a pre-litigation settlement through the agency’s conciliation process. The EEOC seeks compensatory damages and punitive damages for the affected employees, and injunctive relief to remedy and prevent future discrimination based on employees’ race and national origin.
“Making work assignment decisions based on an employee’s race or national origin is against the law, including when these decisions are grounded in preferences of the employer’s clients,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office.
“It is long past the day when employers comply with the discriminatory requests of its clients or customers, to the detriment of its Black and Hispanic workers,” said Timothy Riera, acting director of the New York District Office.
The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Connecticut, Maine, Massachusetts, New Hampshire, New York, northern New Jersey, Rhode Island, and Vermont.
More information about race discrimination can be found at eeoc.gov/racecolor-discrimination. More information about national origin discrimination can be found at eeoc.gov/national-origin-discrimination.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.
©2023 by Rowan Consulting Associates, Inc., Colorado Springs, CO. All rights reserved. This article originally appeared in Home Care Technology: The Rowan Report. homecaretechreport.com One copy may be printed for personal use; further reproduction by permission only. firstname.lastname@example.org