Seyfarth Synopsis: Petitioner to the Supreme Court claims that the Sixth Circuit engaged in a “separate but equal” rationale when it rejected her claim that her employer discriminated against her based on race after the employer allegedly acquiesced to a Caucasian family’s request that no African American caregivers provide care to their family member.
In a thought provoking case recently filed before the U.S. Supreme Court, the petitioner, Ms. Jill Crane, asks “whether a race discrimination claim exists under 42 U.S.C. § 1981 where a nursing supervisor has been excluded from providing care or direction concerning care to a patient based solely on her race?” Petition for Writ of Certiorari (Petition), Crane v. Mary Free Bed Rehabilitation Hospital, No. 15-1206 (March 24, 2016).
The underlying case concerns an employer who provides acute care rehabilitation for patients with brain and spinal injuries. Ms. Crane, an African-American, had been employed as a part-time nursing supervisor. In December 2010, another nursing supervisor allegedly told Ms. Crane that a “Caucasian patient’s family had requested that no African-American caregivers provide care for the patient.” Crane v. Mary Free Bed Rehabilitation Hospital, No. 15-1358 (6th Cir. December 11, 2015).
Ms. Crane claimed that, in enforcing the race-based caregiver request, the employer’s action constituted racial discrimination. The employer, while denying that it honored the request, also suggested that even if the request had been honored, no aspect of the Ms. Crane’s employment changed in any way because of the request. “She had the same work hours, responsibilities, duties, status, pay, and benefits after she heard of the request as she did before and, thus, suffered no adverse action.” Id. Also, as a supervisor, the employer claims, Ms. Crane was not responsible for direct patient care. Therefore, the argument continues, any such policy would not have affected her since she would not have been reassigned to accommodate the alleged request.
Subsequently, Ms. Crane applied for another position, which was awarded to different candidate who was White. The employer contended that the successful candidate’s “qualifications were objectively superior” to Ms. Crane’s. Ms. Crane alleged that she was denied the position “because of her race and in retaliation for engaging in certain protected activities.” Id. The District Court granted the employer’s motion for summary judgment.
The Sixth Circuit Court of Appeals agreed, finding that Ms. Crane suffered no adverse employment action. Indeed, it distinguished any potential “de minimis or temporary” impact on an employee from actionable discrimination. It found that “an adverse employment action is ‘a materially adverse change in the terms and conditions of [Ms. Crane’s] employment’… and generally involves material changes in employment status such as ‘hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” The Sixth Circuit Court cited to Hollins v. Atl. Co., Inc., 188 F.3d 652 (6th Cir. 1999) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
In the Nursing Supervisor’s Petition she states that the Sixth Circuit “accepted the District Court’s finding that while race-based assignments may be an adverse employment action, as to her, it wasn’t because the employment action was merely temporary and as a supervisor she did not have assigned responsibility to care for the patient.” The Sixth Circuit, Ms. Crane argues, is in conflict with the Seventh and Eleventh Circuit Courts, which “have held that the Civil Rights Act is violated where an employer makes an assignment excluding a protected class of employees based on [a] customer’s or patient’s preference.” Ms. Crane cited to Chaney v. Plainfield, 612 F.3d 908 (7th Cir. 2010), which involved an African-American certified nursing assistant that was prohibited from caring for a White resident, and Ferrill v. Parker Group, Inc.,168 F.3d 468 (11th Cir. 1999), that involved a telephone marketing corporation that “would segregate employees, when requested by customers, by assigning separate calling areas and scripts according to race.”
Ms. Crane iterates that the Sixth Circuit engaged in a “separate but equal” rationale, which was provided in Plessy v. Ferguson, 163 U.S. 537 (1896), had long been overruled by cases such as Brown v. Board of Education, 347 U.S. 483 (1954), which held that “separate but equal does not mean there is no racial discrimination.” Indeed, Ms. Crane’s Petition argues that the decision is “contrary to the Civil Rights Act, where there is no circumstance in which segregation based on race is valid regardless of time.”
It may well be that the Sixth Circuit viewed this case as representing a onetime occurrence; the outcome of which might have been different if Ms. Crane had in fact had her duties changed because of the request. It will be interesting to see if the Supreme Court considers the Ms. Crane’s case and whether it is persuaded that an employer may have to litigate allegations of segregation based on race where the alleged segregation was temporary and did not impact the employee’s terms and conditions of employment.