Plaintiff cannot proceed under Title VII even though medical boss may have assigned doctors based on patient racial preferences

This plaintiff is a doctor who alleged that her employer violated Title VII because it was honoring patient requests to be treated by a white doctor. The Court of Appeals says she has no case even though she has alleged a discriminatory motive.

The case is Kairam v. West Side GI, Inc., a summary order issued on December 9. The facts are not clear, but it looks like plaintiff's employer had a professional relationship with another medical practice, known as the Gould Practice, which sent patients over to plaintiff's employer. Dr. Distler supervised plaintiff. The complaint alleges that plaintiff asked why Dr. Distler was not referring her any patients. Dr. Distler said that the Gould Practice was a "boutique practice" and that those patients wanted to see a doctor who "looks like" Dr. Gould, a white male.

This is a serious allegation. The Court of Appeals (Bianco, Pooler and Choe-Groves [Court of International Trade]) says this allegation supports a conclusion that defendant had a discriminatory motivation. The Court of Appeals does not develop this further, but there is a line of cases that says an employer cannot cater to the customer's racist preferences.

What loses the case for plaintiff, however, is that she has not alleged an "adverse employment action," which legalese for "plaintiff has not asserted that she suffered any harm from the discriminatory motivation." Plaintiff does not allege that honoring these patient demands cost her any compensation or significantly diminished her responsibilities. In most cases that do not allege a hostile work environment, the loss of money or prestige will give you a case. Without monetary or other tangible loss, being treated in a racist manner will not give you a case. At least not under Title VII, which has strict requirements to prove an adverse employment action.

This case arose in New York City, so I wonder if plaintiff might still win under the New York City Human Rights Law, which does not follow Title VII's adverse action requirements. Under the City law, plaintiff has a case if she was treated "less well" than other employees because of her race. That lenient standard is probably enough for plaintiff to proceed with her case. Plaintiff most likely pled claims under the City law, but the district court declined to exercise jurisdiction over them because it dismissed the federal claims.