Diversity
(The Legal Side)
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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:
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Improved access to care for ethnic minorities
Greater patient choice and satisfaction
Better educational experiences for health care students
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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…
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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
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Law and Diversity
The Melting Pot view suggests our society should view naturalization as
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 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
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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!
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Law and Diversity
If people retain the culture of their country of origin, through …
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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
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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:
1.
Assimilation takes time
2.
English is not the “official language” of the US
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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
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Law and Diversity
Requirements for acquiring citizenship from the INS website
(ACT 312):
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• 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
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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
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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
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 over 50 with legal permanent residence 20+ years over 55 with legal permanent residence 15+ years
With physical or developmental disability
Legally then,
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 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
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Law and Diversity
2 Reasons to accommodate diverse cultures:
1.
Viewing health care as a business, it makes good business sense to adapt to customer needs
2.
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
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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
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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
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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
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Workplace Discrimination
The Equal Employment Opportunity Commission (EEOC) was established in 1964 to enforce:
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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
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Sexual Harassment
Most common employment discrimination claim
2 Types of Sexual Harassment claims:
1.
2.
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
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Sexual Harassment (cont)
Hostile Work Environment:
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Harassment that unreasonably interferes with employee’s work performance, and or creates an intimidating, hostile, or offensive work environment
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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
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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?
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