Despite efforts by employers to create inclusive environments for employees of all backgrounds, discrimination can still occur in the modern workplace. Whether it be from a narrow-minded supervisor, unfair policy application, or disparities in pay, discrimination is still happening. A newer form of discrimination that we’re seeing go through the courts is discrimination on the basis of one’s opinion on important societal issues. This is partially the case in Gustilo v. Hennepin Healthcare System.
Dr. Tara Gustilo is a physician within the Hennepin Healthcare System (“HHS”), working in obstetrics and gynecology. She is of Filipino descent. After a successful career in other healthcare facilities, she was eventually promoted to Clinic Medical Director of her practice group and Chair of the Department of Obstetrics with HHS.
Following the murder of George Floyd, Dr. Gustilo began researching a number of issues related to race, including the defunding of police and Critical Race Theory. After concluding her research, Dr. Gustilo began writing letters to the HHS Board and CEO denouncing the defunding of police and rejecting Critical Race Theory, and believed HHS should hold conversations how both those concepts should be discussed with the community. According to Gustilo, HHS ignored her requests and “continued to foster an environment of discrimination and retaliation by supporting and perpetuating such a narrative and by imposing its own views on race,” which were allegedly consistent with Critical Race Theory.
In addition to her alleged unaddressed concerns about police relations and Critical Race Theory, Dr. Gustilo was also in disagreement with HHS’s changes to her “culturally congruent care” birthing program, which “emphasized and celebrated the varying cultural traditions during the birthing process.” She argued that the changes made to the program by HHS actually created segregation of care based on race.
Dr. Gustilo also vocalized her disagreement of her department’s support of a Black Lives Matter event and support of citizens in their “unrest” during the George Floyd protests.
Dr. Gustilo made her beliefs known on her Facebook page (because, of course) and also shared them with co-workers. This eventually led to conversations with her supervisor and Human Resources, and she was investigated for her conduct. After an outside investigator made findings against Dr. Gustilo, she was asked to voluntarily step down from her Chair position, and when she refused to do so, was removed from the position by the HHS Medical Executive Committee. She was replaced by a white individual.
Finally, Dr. Gustilo alleged that during a meeting with Human Resources, she was told “her beliefs, including her advocacy for equality under the law and compliance with the U.S. Constitution, Title VII, and the Minnesota Human Rights Act were the ‘trigger’ for her demotion.” Dr. Gustilo is suing for racial discrimination, citing her expression of beliefs and advocating for compliance with Title VII and the U.S. Constitution, as well as her refusal to “subscribe to the ideology expected of her as a person of color.” She also alleged retaliation and, because HHS is a subsidiary of Hennepin County, deprivation of her First Amendment rights.
This presents an interesting case for the court. First, it will have to examine HHS’s non-discriminatory reasons for the demotion of Dr. Gustilo. Based on the complaint, it appears that it was in part due to her divisive statements made to both the board and the CEO of the organization, as well as her public statements and comments made to other hospital staff. Even if those comments were related to Critical Race Theory and the defunding of police, a disciplinary action against her would not necessarily be based on her race. However, at the same time, HHS will need to show that the plaintiff’s speech was not protected by the First Amendment (we’ll speak more on this next week). The employer has been placed directly between the proverbial rock and hard place. While Dr. Gustilo will have the burden of production, it will be the employer’s onus to ensure the non-discriminatory, non-speech-related actions it used as the basis for demoting Dr. Gustilo are abundant and persuasive.
This complaint was only filed in the beginning of February, so the case has a long ways to go prior to any decisions. But the court’s decisions on these matters of speech will be important to how situations like this are dealt with the in future. We will keep our eyes on this one. As the country becomes more divided on political matters, the likelihood of these events repeating in the future becomes much greater. If you, or your organization need assistance in responding to matters of possibly protected discrimination and speech in the workplace, contact Wiley Reber Law, for legal advice that works.