By: Erica Shelley Nelson and Sarah Burke
In Blackburn v. Dep’t of Soc. & Health Servs., nine employees at a Washington state psychiatric hospital alleged racial discrimination after the hospital restricted job assignments. The Washington State Supreme Court found the temporary race-based restriction violated the Washington Law Against Discrimination.
During normal shifts at the hospital, staff are assigned different wards based on needs. These assignments were made based off of a “pull list.” In April 2011, a violent and dangerous patient threatened a black staff member and further threatened to harm any black staff member that worked with him. In light of these threats, the hospital decided to not have any black staff members work with the patient over the week to ensure safety. The next day, hospital staff refused to honor the pull list and instead sent a “light skinned” staff member instead. The weekend passed without incident and the directive to ignore the pull list ended the following Monday.
The employees sued, alleging this action amounted to disparate treatment because of race. The trial court disagreed, and issued a defense verdict. The Washington State Supreme Court took up the employees’ appeal and analyzed whether the hospital’s action could be disparate treatment under WLAD. The Court first noted that WLAD should be construed liberally before finding:
[the hospital’s] overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in “terms or conditions of employment because of … race
The Court additionally noted that the hospital had no valid legal basis for the discrimination. While businesses are allowed to apply discriminatory practices if a protected characteristic is a bona fide occupational qualification, Washington law only allows this limited qualification based on sex, not race.
Having some familiarity with this case, I am not entirely sure that the Supreme Court made the right decision here, but it was certainly a close call.
The state made two central arguments. First, that the employees could not show that there was an “adverse employment action.” Second, that race was not a substantial factor in the decision to reassign the employees because any characteristic could have been substituted for race and the hospital would have made the same decision.
The employees argued that any time an employer takes race into account, it is per se discriminatory.
While I certainly think this case broadens the scope of protections for employees under the Washington Law Against Discrimination, this was certainly a tough case. The psychiatric hospital was in a real bind. They had a violent and dangerous patient who openly threatened physical harm to its black staff members. In order to protect the staff from harm, the hospital reassigned the staff members so as to avoid any violence.
Unfortunately, while the state’s interest was reasonable, the court disagreed with how the state went about resolving the issue, namely, singling out and not assigning its black staff members to the ward of the problem patient. Arguably, the state could potentially have taken other actions that did not require singling out its black staff members. I am sure this likely swayed the court’s decision to some extent.
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