Published online by Cambridge University Press: 06 January 2021
This Article explores the concept of public accommodation in a civil rights context and presents an argument for revising the Civil Rights Act of 1964 (Act) to extend public accommodation obligations to private healthcare providers and the healthcare industry as a whole, regardless of their participation in federally assisted programs. To the extent that the Act currently reaches healthcare conduct within a relatively narrow definition of “federal assistance,” this view has been eclipsed by the evolution of social attitudes toward the community-wide obligation of healthcare providers, U.S. civil rights policy at both the federal and state levels, the enormity of the federal investment in the U.S. health system and changing concepts of basic health quality. This analysis begins with a brief overview of the current structure of U.S. civil rights law in the context of racial and ethnic minority groups’ access to healthcare.
The authors are indebted to Mandy Bartoshesky, a second-year candidate in the joint law-public health degree program at The George Washington University, for her research assistance in the preparation of this Article.
This Article was supported by an Investigator Award in Health Policy Research from The Robert Wood Johnson Foundation. The views expressed are those of the authors and do not imply endorsement by The Robert Wood Johnson Foundation.
1 42 U.S.C. §§ 2000a-2000cc (2000).
2 42 U.S.C. §§ 12101-12213 (2000).
3 42 U.S.C. § 12182(a).
4 See, e.g., Bragdon v. Abbott, 524 U.S. 624, 628-29 (1998) (considering an individual's ADA discrimination suit against a dentist in private practice).
5 42 U.S.C. § 2000a(a).
6 42 U.S.C. § 2000a(b).
7 Watson, Sidney D., Reinvigorating Title VI: Defending Health Care Discrimination–It Shouldn't Be So Easy, 58 FORDHAM L. REV. 939, 943 (1990)Google Scholar; see also Rosenbaum, Sara et al., U.S. Civil Rights Policy and Access to Health Care by Minority Americans: Implications for a Changing Health Care System, 57 MED. CARE RES. & REV. 236 (2000)Google Scholar (discussing Title VI and federal financial assistance).
8 DAVID BARTON SMITH, HEALTH CARE DIVIDED: RACE AND HEALING A NATION 115-21 (1999). This exemption was never codified. Recent guidelines on access to health and social services facilities by individuals with limited English proficiency suggest that the federal government is now inclined to treat Medicare physician payments as a form of federal assistance. Originally, Medicare Part B was structured as an indemnity program; thus the Johnson Administration's original decision not to use Medicare as a basis for establishing civil rights jurisdiction over physicians under Title VI made at least vague legal sense. Today, however, nearly one hundred percent of physicians participate in Medicare, and direct payment has become the norm, thus the original justification for exempting Medicare Part B as a form of federal financial assistance no longer appears to have any validity. See Moon, Marilyn, Freedom to Pay or Freedom to Choose? Private Contracting and Medicare Beneficiaries, 10 HEALTH MATRIX 21, 26-5 (2000)Google Scholar (excluding areas such as pediatrics, “[w]ell over ninety percent of all physicians … take Medicare patients, and many of them continue to accept new Medicare patients as well”).
9 See Hurley v. Eddingfield, 59 N.E. 1058, 1058 (Ind. 1901) (holding that a physician had no duty to provide an individual with care because those in medical practice, unlike “innkeepers, common carriers, and the like” have no obligation to the public); RAND ROSENBLATT ET AL., LAW AND THE AMERICAN HEALTH CARE SYSTEM 42-54 (1997) (providing a discussion of the tradition of the common law).
10 This duty of care can be seen most clearly in hospital emergency care cases. See, e.g., Wilmington Gen. Hosp. v. Manlove, 174 A.2d 135 (Del. 1961) (denying a defendant hospital's motion to dismiss because although the hospital had the right to refuse to deny treatment because it was a private institution, the plaintiff could base a claim on the theory of detrimental reliance). Manlove is one of a number of cases that evidence a willingness on the part of courts to treat healthcare providers as places of public accommodation that incur certain community-wide obligations to accept and treat medical emergencies. See ROSENBLATT ET AL., supra note 9, at 48-54 (presenting numerous cases that illustrate the court's readiness to let plaintiff patients prevail on various tort theories).
11 RICHARD C. CORTNER, CIVIL RIGHTS AND PUBLIC ACCOMMODATIONS 2 (2001); see also PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982) (providing a comprehensive discussion of the history of the American healthcare industry).
12 CORTNER, supra note 11.
13 Id. The Civil Rights Act of 1875 stated:
[A]ll persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land and water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.
14 109 U.S. 3 (1883).
15 CORTNER, supra note 11, at 2, 3.
17 See Yamamoto, Eric K. et al., Dismantling Civil Rights: Multiracial Resistance and Reconstruction, 31 CUMB. L. REV. 523, 535-36 (2001)Google Scholar.
18 CORTNER, supra note 11, at 3.
19 347 U.S. 483 (1954).
20 U.S. CONST. amend. XIV, § 1. The Equal Protection Clause states “[n]o State shall … deny to any person within its jurisdiction the equal protection of laws.” Id.
21 CORTNER, supra note 11, at 4.
22 Id. at 4-5.
23 Id. at 6-7.
24 Id. at 7.
26 Kennedy, Randall, The Struggle for Racial Equality in Public Accommodations, in LEGACIES OF THE 1964 CIVIL RIGHTS ACT 156, 157 (Grofman, Bernard ed., 2000)Google Scholar.
27 Chief Justice Warren and Justices Douglas and Goldberg agreed that racial discrimination in places of public accommodation violated the Fourteenth Amendment. Id.
28 Yet, by the time Congress passed the Act in July 1964, at least twenty states had public accommodation laws in place. CHARLES WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT 202 (1985).
29 Id. at 214. Indeed, the debate about the issues encompassed in the 1964 Civil Rights Act had “nagged the country's conscience since the First Congress met on March 4, 1789.” Id. at 230.
30 Title II of President John F. Kennedy's proposed civil rights bill “prohibited discrimination in public accommodation, including all places of lodging, eating, and amusement and other retail or service establishments.” Id. at 1; Civil Rights Act of 1964, Pub. L. No. 88-352, 88 Stat. 289 (codified as amended 42 U.S.C. §§ 2000a-2000cc (2000)).
31 See Kennedy, supra note 26, at 159 (noting that Title II was the most controversial section of the Act). Interestingly, however, Title II “quickly faded in significance” because, with the exception of isolated areas of the Old South, compliance was peaceful and widespread. Id. Title II has never been amended and has produced relatively few interpretive decisions; in contrast, Title VII, which prohibits racial discrimination in employment, has been amended several times and has spawned a mountain of case law. Id. at 160.
32 Congress chose what seemed the constitutionally safer course, namely, basing Title II on the Commerce Clause. Id. at 159. This option was better at the time of enactment because the prevailing public policy view of the Commerce Clause was that in accordance with Supreme Court jurisprudence at the time, the Commerce Clause empowered Congress to reach extensively into private conduct identified as obstructing or imposing burdens on interstate commerce. In two seminal cases, decided concurrently with passage of the Act, the Court validated Congress's approach. Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964). Recent decisions construing the Commerce Clause suggest that the Court is narrowing this reach. For a discussion of the Commerce Clause since 1995, see ERWIN CHEMERINSKY, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES 194-97; see also U.S. v. Lopez, 514 U.S. 549 (1995) (finding, for the first time in nearly sixty years, that a federal law was not applicable to a defendant, a private actor, because the law did not substantially relate to interstate commerce and, therefore, was unconstitutional).
33 Kennedy, supra note 26, at 161.
34 Tucker, Bonnie Poitras, The ADA's Revolving Door: Inherent Flaws in the Civil Rights Paradigm, 62 OHIO ST. L.J. 335, 341-42 (2001)Google Scholar (comparing the Civil Rights Act and Title III of the ADA).
35 42 U.S.C. § 12101(b)(1) (2000).
36 29 U.S.C. § 794 (2000).
38 See 28 C.F. R. § 36.104 (2002) (giving examples of places of public accommodation by listing, among other things, restaurants, bars, theaters, hotels and stores).
40 42 U.S.C. § 12181(7)(F) (2000); see Bragdon v. Abbott, 524 U.S. 624, 629-30 (1998). Applying the ADA's public accommodation standards to a private dentist's practice, the Court ruled that professional medical offices are places of public accommodation. Id.
41 28 C.F.R. § 36.208(c) (2002); see also Bragdon, 524 U.S. at 648-49 (stating that “[t]he ADA defines a direct threat to be ‘a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services’”).
42 28 C.F.R. § 36.101. The concept of “readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” 28 C.F.R. §36.104. In determining whether an action is readily achievable, factors to be considered include:
(1) The nature and cost of the action needed under this part; (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
43 H.R. REP. NO. 101-485, pt. 2 (1990); see also 136 CONG. REC. H2479 (daily ed. May 17, 2990) (statement of Rep. McCloskey); 136 CONG. REC. S9544 (daily ed. July 11, 1990).
44 See, e.g., Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999), cert. denied, 528 U.S. 1106 (2000). The ADA classifies employer-sponsored health benefits as a term or condition of employment and arguably might proscribe limitations that arbitrarily classify risks based on disability under employee benefit plans. However, the ADA insurance content cases tend to involve persons who no longer can claim an employment nexus under Title I by the time they litigate their insurance claims because their disabilities have cost them their jobs. Discrimination claims that arise during post-employment coverage periods (e.g., under a long-term disability plan or as a result of COBRA continuation medical care benefits) have been held not to constitute employment-based claims under the ADA. See, e.g., Morgan v. Joint Admin. Bd. Ret. Plan of Pillsbury County, 268 F.3d 456 (7th Cir. 2001); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).
45 Sara Rosenbaum et al., The Americans with Disabilities Act and Community Integration: Understanding the Concept of ‘Fundamental Alteration’ (Ctr. for Health Care Strategies, Working Paper, May 2000), available at http://www.chcs.org/publications/consumer.html.
46 INST. OF MED. COMM. ON UNDERSTANDING & ELIMINATING RACIAL & ETHNIC DISPARITIES IN HEALTH CARE, UNEQUAL TREATMENT: CONFRONTING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE (Brian D. Smedly et al. eds., 2003) [hereinafter UNEQUAL TREATMENT].
47 In fact, from a state law perspective this may not be true at all. In a forthcoming article, we explore the trend within state anti-discrimination laws of classifying medical care practice as public accommodation.
48 UNEQUAL TREATMENT, supra note 46, at 82.
49 See, e.g., Plessy v. Ferguson, 163 U.S. 537 (holding that “separate but equal” accommodation for blacks and whites in public railroad cars did not violate the Fourteenth Amendment of the Constitution).
50 For a poignant account of one African-American woman's experience in a white doctor's office, see Zora Neale Hurston, My Most Humiliating Jim Crow Experience, in TRIALS, TRIBULATIONS, AND CELEBRATIONS: AFRICAN-AMERICAN PERSPECTIVES ON HEALTH, ILLNESS, AGING AND LOSS 23 (Marian Gray Secundy ed., 1992).
51 JAMES H. JONES, BAD BLOOD: THE TUSKEGEE SYPHILIS EXPERIMENT 43 (1981). Concerns about the sanitary conditions of black neighborhoods, for example, were recognized as factors in the spread of hookworm and water-born diseases into white communities. Id. at 43-44.
52 Id. at 43.
53 SMITH, supra note 8.
54 JONES, supra note 51.
55 ROSENBLATT ET AL., supra note 9, at 844-45 (discussing the trend of applying a national, rather than a local, standard of care to medical malpractice cases).
56 Tax sheltered private payments for medical care will take on an even greater role under the Bush Administration's policies promoting the use of defined contribution health plans with individual spending accounts.
57 Woolhandler, Steffie & Himmelstein, David U., Paying for National Health Insurance—And Not Getting It, 21 HEALTH AFF., July-Aug. 2002, at 88CrossRefGoogle Scholar.
58 532 U.S. 275 (2001).
59 Id. at 293.
60 Sara Rosenbaum & Joel Teitelbaum, Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval, __ YALE J. HEALTH POL’Y L. & ETHICS __ (2003) (forthcoming).
61 UNEQUAL TREATMENT, supra note 46, at 81-82.
62 See id.; see also HENRY J. KAISER FAMILY FOUND., KEY FACTS: RACE, ETHNICITY & MEDICAL CARE (1999); ROBERT MORRIS MAYBERRY & MOREHOUSE MED. TREATMENT EFFECTIVENESS CTR., A SYNTHESIS OF THE LITERATURE: RACIAL & ETHNIC DIFFERENCES IN ACCESS TO MEDICAL CARE (1999); Phillips, Kathryn A. et al., Barriers to Care Among Racial/Ethnic Groups Under Managed Care, HEALTH AFF., July-Aug. 2000CrossRefGoogle Scholar, at 65.