These are extraordinary times for the healthcare system in the United States. As of this writing, at least 206,233 Americans are known to have been infected with the coronavirus, and at least 4,576 of those individuals have died. Of the Americans who have tested positive for the virus, at least 83,887 are from New York, the state hardest hit by the pandemic. And the majority of those cases are in New York City, where the high density and population have made that metropolitan area the national epicenter of the public health crisis.
Healthcare providers have answered the call. New York Governor Andrew Cuomo has reached out to medical professionals who work outside hospital settings to request that they volunteer in staffing hospitals during the pandemic. At his daily briefing on March 25, Governor Cuomo announced that the State had heard back from 40,000 volunteers, including 2,265 physicians; 2,409 nurse practitioners; 938 physician assistants; 328 nurse anesthetists; 160 respiratory therapists; 16,367 registered nurses; and 4,016 licensed practical nurses.
Beyond the obvious risk of getting infected with the virus themselves, volunteer healthcare providers face other risks while working in hospitals. As my colleague, David Tracey, has explained, sexual harassment and gender discrimination are pervasive problems in medicine, as is discrimination against racial and ethnic minorities. In the meantime, documents revealing that the Department of Justice is seeking to suspend certain constitutional rights due to the health crisis are not particularly reassuring about our culture’s attitude toward civil rights in this chaotic historical moment.
So, what laws protect these healthcare providers who have offered to go above and beyond in this time of urgent need?
As for federal law, Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any individual based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). The extent to which this provision applies to those who aren’t “employed” in the traditional sense depends on several factors. To show that Title VII applies, a plaintiff must first prove that she was “hired,” which requires establishing “that she received remuneration in some form for her work.” United States v. City of New York, 359 F.3d 83, 92 (2d Cir. 2004). Importantly, “[t]his remuneration need not be a salary”; rather, it “must consist of substantial benefits not merely incidental to the activity performed.” Id. (quotation omitted).
Once such proof is provided, a court is to consider the following factors: (1) the hiring party’s right to control the manner and means of the hired party’s work (the most important factor); (2) the skill required; (3) the sources of the instrumentalities and tools used in the hired party’s work; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party’s discretion over when and how long the hired party must work; (8) the method of payment, if any; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits, if any; and (13) the tax treatment of the hired party. See id. (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989)).
In sum, whether Title VII would protect a healthcare provider volunteering at a hospital would depend on that individual’s specific relationship with the hospital. What types of benefits other than payment did the healthcare provider receive from the hospital in exchange for the work performed? Were those benefits of a type typically given to hospital employees? To what extent did the hospital exercise control over the healthcare provider in the course of his or her work? If a hospital supervisor insisted that the healthcare provider perform additional tasks beyond what he or she had originally agreed, could the provider say no? These case-specific questions would determine whether or not Title VII’s protections kick in.
As for state and local law, the recent developments in this area have been significant. On April 15, 2014, New York City Mayor Bill De Blasio signed into law an amendment to the New York City Human Rights Law extending that law’s broad protections from discrimination and harassment to both paid and unpaid interns. Governor Cuomo followed suit: on July 22, 2014, the New York State Human Rights Law was also amended to protect interns against discrimination. Under the State Human Rights Law, an “intern” is defined as a person “who performs work for an employer for the purpose of training,” where the employer has not committed to formally hiring the worker in the future, the employer and worker agree that the worker will not receive wages, and the work performed: (1) provides or supplements training that may enhance the employability of the worker; (2) provides experience for the benefit of the person performing the work; (3) does not displace regular employees; and (4) is performed under the close supervision of existing staff. 13A N.Y. Prac., Employment Law in New York § 4:389.50 (2d ed. Oct. 2019 Update).
These protections may very well apply to hospital volunteers who have committed to treating coronavirus patients. New York University’s Grossman School of Medicine recently announced via Twitter that it planned to allow senior students to graduate early in response to Governor Cuomo’s directive to get more physicians into the health system more quickly, and at least 69 of those medical students have agreed to do so. As Dr. Steven Abramson, vice dean for education, faculty and academic affairs at N.Y.U. Grossman recently told the New York Times: “We’re running into issues of manpower. That led us to conclude: Why not graduate students who are interested in serving in hospitals now? They’ve completed their requirements and they’re prepared.” When those newly minted medical school graduates enter New York’s overburdened hospitals to help fight this pandemic, they should be protected from discrimination.
If you are a healthcare provider and have experienced discrimination or harassment in the course of your work, you should meet with an attorney to determine what your legal options are. Sanford Heisler Sharp has experienced race and gender discrimination lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.