First Episode of Parker Poe Rapid Response: CMS Final Rule on Nursing Home Arbitration Agreements

The Centers for Medicare and Medicaid Services (“CMS”) recently adopted a new final rule banning nursing homes that receive federal funding (such as Medicare or Medicaid) from entering into pre-dispute arbitration agreements with their residents.  WATCH Parker Poe Attorneys Robb Leandro, Brad Overcash, and Matt Wolfe discuss the final rule and its impact for nursing homes (and other providers).   A link to the rule is available here.

Matt Wolfe

Matt Wolfe

Matt Wolfe concentrates his practice in the areas of administrative litigation, government relations, and other regulatory matters. Matt formulates comprehensive political and public relations strategies on a broad range of federal and state policies. He drafts and monitors legislation, intervenes directly with legislative, executive, and local officials, and appears before state and federal executive agencies. Within his administrative litigation practice, Matt advises and counsels health care providers subject to federal and state regulatory actions.

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Supervisor’s Remarks May Constitute Direct Evidence of Discriminatory Bias

On September 2, 2016, the United States District Court for the District of Maryland (which sits in the Fourth Circuit, along with North Carolina and South Carolina) held that the EEOC can move forward in its case against a large Maryland healthcare provider for allegedly failing to promote a female employee allegedly because she had availed herself of maternity leave.

In the case, EEOC v. Dimesions Healthcare Sys., No. PX 15-2342 (D. Md. Sept. 2, 2016), upon being passed up for a promotion, the plaintiff met with her supervisor to discuss why she had not been awarded the position when she had more years of experience in the industry and working with the company than the male candidate who had been selected. In response to the plaintiff’s inquiries, the supervisor told the plaintiff that the selected candidate “had a management background. Plus you were on maternity leave for a while.” Highlighting the fact that the supervisor was the ultimate decision-maker and that this reference to the plaintiff’s maternity leave was made on the heels of the promotion decision, the court concluded that the comment could reasonably be viewed as direct evidence of discrimination. The court focused on the fact that the plaintiff had superior experience and qualifications compared to the selected male candidate in rejecting defendant’s argument that the comment was a single, isolated remark that should not be given much weight. Moreover, the court also considered remarks and personnel decisions the supervisor had made with regard to other pregnant employees to further support its conclusion that the statement could reasonably be viewed as direct evidence of a discriminatory bias.

This case is a reminder that comments—especially those made by decision-makers—can constitute direct evidence of discrimination under federal discrimination laws. When there is direct evidence of discrimination, it is easier for a court or jury to find an employer liable for unlawful discrimination. The court’s decision also demonstrates that circumstantial evidence cannot only be used under the burden-shifting framework set forth in McDonnell Douglas, but can also bolster alleged discriminatory comments under the direct evidence analysis. Furthermore, the court’s consideration of comments made about other employees highlights that remarks do not have to be about the employee or employment decision at issue to constitute direct evidence of a discriminatory bias.

Most importantly, the case underscores the importance of training employees in decision-making positions to refrain from voicing or considering unlawful factors when making employment decisions or otherwise.

Jonathan Crotty

Jonathan Crotty

Jonathan Crotty has been a successful counselor and problem solver for large and small employers in the Carolinas and beyond for over 20 years. He heads Parker Poe’s Employment and Benefits practice group and represents employers in all aspects of the employment relationship, from hiring to discharge. Mr. Crotty provides guidance to employers as they navigate the complex array of laws and regulations applicable to the employment relationship, including employment discrimination laws, OSHA compliance, FMLA, and wage and hour matters. If employers face legal or administrative claims resulting from their employees and employment practices, he defends and resolves those disputes in line with the client’s goals and expectations.

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