Legal Issues Ch. 9

1. Legal Issues Ch. 9 Diversity (The Legal Side)

2. Law and Diversity Institute of Medicine (IOM) Report - 2/5/2004: predicts that nonwhites racial and ethnic groups will constitute the majority of the US later in this century The book notes that statistics show minorities are presently underrepresented in all health professions Benefits of more diversity in the health care workplace are: • Improved access to care for ethnic minorities • Greater patient choice and satisfaction • Better educational experiences for health care students

3. Law and Diversity Historically or traditionally the US has been called a “melting pot.” People from other nations arrive here and slowly adapt to a new culture, To the extent that they do not adapt—don’t melt—they change the culture Even on the melting pot view, while leaving behind the culture of their country of origin, immigrants always retain some things… • Folks from Ireland still celebrate St. Patrick’s Day • Folks from Italy might start a pizza shop • Poles might start a deli • Norwegians might start a lutefisk shop … or not

4. Law and Diversity The Melting Pot view suggests our society should view naturalization as • immigrants adapting to life in the US • not, the US adapting to immigrants • In a melting pot, or a stew if you like, individual elements melt into one, their flavors mix, much of their diversity is lost • E Pluribus Unum! (out of many, one!) The main opposing view is often called the Tossed Salad view • The US changes with each new ethnic or cultural addition • people are or should be encouraged to retain their culture of origin while working together, much the way the lettuce, tomatoes, cucumbers, etc., all work together in making a great salad while retaining their individual differences • Multiculturalism! • Celebrate diversity!

5. Law and Diversity If people retain the culture of their country of origin, through … • Native language • Attitude or allegiance • Rejection of marriage outside their ethnic group • Rejection of their new country’s customs the US (or any nation) becomes a tossed salad more than a melting pot

6. Law and Diversity The book endorses the tossed salad view over the melting pot (p207) • it considers the notion of a melting pot only briefly and derisively • it rejects the view that immigrants should bear the bulk of the burden of communicating with health care workers Why? 2 reasons: • Assimilation takes time • English is not the “official language” of the US

7. Law and Diversity Reply to 1: So assimilation takes time? So what? Reply to 2: While it is true that English is not the official language of the US, even if it were, all that would mean, apparently, is that all government documents and services would be printed in English and delivered using English The Immigration and Nationality Act (INA) of 1952* established a legal requirement regarding English competency that is implemented by the Immigration and Naturalization Service (INS) … see ACT 312

8. Law and Diversity Requirements for acquiring citizenship from the INS website (ACT 312): • an ability to read, write, and speak English; • a knowledge and understanding of U.S. history and government; • good moral character; • attachment to the principles of the U.S. Constitution; and, • favorable disposition toward the United States So, while it is true that English is not the official language of the US in one sense (for government use), it is still the official language of the country in another sense: citizenship legally requires it

9. Law and Diversity Given the INS mandate, and the lack of any argument for preferring the Tossed Salad to the Melting Pot, why does the book view health care workers as obliged to countenance the cultural and linguistic barriers to providing good health care? Isn’t it the duty of citizens to know the language well enough to communicate with health care workers? The answer seems to be yes, and no

10. Law and Diversity While the INS requirements for citizenship include a language component, only minimal proficiency in English is required Also, there are exceptions made*, for those • over 50 with legal permanent residence 20+ years • over 55 with legal permanent residence 15+ years • With physical or developmental disability Legally then, • recent immigrants have no legal responsibilities that oblige them to speak English well enough to ensure good health care (this consideration defeats Reply 1 on slide 7) • a good number of citizens (elderly immigrants, for example) legally are not required to speak English at all *http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=c9fef57852dc066cfe16a4cb816838a4

11. Law and Diversity 2 Reasons to accommodate diverse cultures: • Viewing health care as a business, it makes good business sense to adapt to customer needs • Misunderstandings based on language issues can result in liability for health care workers (p209—read “What Does Cultural …”) The problem of providing equally good care to folks with limited English proficiency (LEP) has been addressed through mandates, considered on the follow slides

12. Professional Mandates American Society of Radiologic Technologists (ASRT) requires non-discriminatory care in its code of ethics In 2006 the ASRT curriculum goals include “Communications with regard to type of communication and barriers to communication” –p208

13. Federal Mandates With Public Law No. 101-527, congress created the Office of Minority Health (OMH) That office was given the task of improving health care professionals abilities to help LEP patients In 1990 Executive Order 13166 mandates federal agencies all examine services they provide and their accessibility to LEP individuals

14. State Initiatives Be aware that, state to state, there will be different policies that guide health care workers in their cultural competency expectations and diversity training Expect that in areas where languages other than English are common, learning the culture and some of the language may be expected

15. Workplace Discrimination The Equal Employment Opportunity Commission (EEOC) was established in 1964 to enforce: • Civil Rights Act, Title VII (1964) race, color, gender, religion, national origin • Equal Pay Act, EPA (1964) gender … it also enforces… • Age Discrimination in Employment Act, ADEA (1967) age • Rehabilitation Act (1973) disability • Americans with Disabilities Act, ADA (1990) disability • Family and Medical Leave Act, FMLA (1993) child birth, care of spouse, recover health

16. Sexual Harassment Most common employment discrimination claim 2 Types of Sexual Harassment claims: • Quid Pro Quo • Hostile Work Environment Quid Pro Quo (This for That): If getting hired, staying employed, or advancement depends on sexual conduct. • Employers are held responsible misconduct of managers, supervisors, etc. • Mere threat of economic loss is sufficient grounds for damages

17. Sexual Harassment (cont) Hostile Work Environment: Harassment that unreasonably • interferes with employee’s work performance, and or • creates an intimidating, hostile, or offensive work environment Typically involve • Sexual suggestions • Sexually derogatory remarks • Sexually motivated physical contact Read 5 requirements for a prima facie finding of Hostile Work Environment pp.213-214 • Does discussion [blue box] on p.213 make sense? • Who is Protected? p.214 … How are ‘men’ a member of a protected class (requirement #1)? • What does “harassment resulting from terminated consensual relationships” mean?