Editor’s note: This article is not intended to be a comprehensive review of all legal and compliance considerations for human resources professionals. Practice leaders should consult with their HR professional and/or counsel on finer points of HR legal matters.
Diversity is a business imperative with potential for real results. While various equal employment opportunity and non-discrimination mandates are very important for compliance among healthcare provider organizations, there is a bottom-line reason to build diversity in your formal recruitment and hiring efforts.
As noted in McKinsey & Co.’s 2018 Delivering through Diversity report, diversity and inclusion efforts provide competitive advantages for companies, and not purely in terms of regulatory compliance and social responsibility — these efforts are “an enabler of two of the foremost goals for CEOs: growth and value creation.” More specifically:
- Companies with more culturally/ethnically diverse leadership teams were 33% more like to see better-than-average profits
- Companies in the top 25th-percentile for gender diversity in leadership were 15% more likely to have above-average profits.
Underrepresentation and the need for diversity
Numerous Black, Indigenous and People of Color (BIPOC) have been underrepresented in the healthcare industry relative to the demographics of the communities served by provider organizations. In 2017, the Health Resources and Services Administration (HRSA) report on sex, race and ethnic diversity in healthcare found that between 2011 and 2015, Whites made up the majority of the U.S. workforce (64.4%), compared to Hispanics (16.1%), Blacks (11.6%), Asians (5.3%) and multiracial and other racial backgrounds combined (1.8%). That same HRSA report noted that all minority groups except Asians were underrepresented in occupations involving health diagnosis and treatment.
This underrepresentation among the physician workforce persists in large part due to underrepresentation of racial and ethnic diversity in medical education. According to the Association of American Medical Colleges’ Diversity in Medicine: Facts and Figure 2019 report:
- Only 7.1% of acceptees to U.S. medical schools for academic year 2018-19 were Black.
- The percentage of Black graduates of U.S. medical schools the same year was even lower among all races and ethnicities, at 6.2%.
- Only 5% of all active physicians in the United States in 2018 identified as Black.
As noted by Michelle Ko in a June 2020 Health Affairs article, even efforts to train a BIPOC-majority of students to practice in underserved communities — such as the program she entered at UCLA two decades ago — resulted in exposure of biases against BIPOC medical students, who “continually received the message that their status as medical students and physicians was undeserved at best, if not downright unwelcome.”
Ko also noted that bans on affirmative action programs in some states “severely curtailed” improvements in diversity in medical schools, including a decline in the acceptance rate for BIPOC applicants.
Major regulatory issues regarding diversity
While there are numerous regulations relevant to employment law for medical practices (See MGMA’s HR Policies and Procedures Manual for Medical Practices, 5th Edition for a full overview), these areas of law specifically impact your organization’s hiring as it relates to diversity and non-discrimination:
- Title VII of the Civil Rights Act of 1964 generally prohibits employment discrimination based on race, color, religion, sex and national origin and has subsequently been amended by the Civil Rights Act of 1991 and the Lilly Ledbetter Fair Pay Act of 2009.
- The Equal Employment Opportunity (EEO) Act of 1972 extends the anti-discrimination provisions of Title VII. It applies to employers with 15 or more employees.
- Job descriptions: List only minimum necessary requirements (such as education and experience) when writing job descriptions to help ensure applicants of protected classes are not artificially screened out. Any attributes beyond that should be listed as “preferred” or “desirable” in an applicant. Similarly, job descriptions should not state that it can only be performed by a licensed profession unless your state requires it [e.g., a state might require registered nurses (RNs) to be licensed, but not medical assistants (MAs)].
- Disclaimers: To note that only basic/essential functions are in a job description, consider the addition of a disclaimer to the description: “This description is intended to provide only basic guidelines for meeting job requirements. Responsibilities, knowledge, skills, abilities, and working conditions may change as needs of the organization evolve and on an organization by organization basis.”
- Policy: Ensure your practice has a written policy regarding EEO, implemented by the HR director throughout the practice who also ensures compliance in concert with department directors and supervisors. (A sample policy is available in Operating Policies and Procedures Manual, 5th Edition).
- The Americans with Disabilities Act of 1990 (ADA) prohibits private employers and other entities from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other aspects of employment. Similar to EEO, this also applies to employers with 15 or more employees.
- Note the role of an individual being “qualified” for the position, meaning that he or she can perform the essential functions of the job with or without reasonable accommodation.
Understanding your compliance needs
Here are some of the most common areas of federal law applicable to your HR operations to understand for compliance purposes:
Federal contract compliance for equal opportunity, affirmative action and non-discrimination. Contractors and subcontractors of the federal government must comply with equal opportunity, affirmative action and non-discrimination requirements, including those outlined in:
- Does it apply to my practice? According to Brouse McDowell, the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) considers providers participating in Medicare, TRICARE and the Federal Employee Health Benefits Program to be federal subcontractors. However, federal grants and participation in Medicare Parts A and B are considered “federal financial assistance” not covered under OFCCP’s jurisdiction.
- Additionally, OFCCP has a moratorium on TRICARE subcontractor enforcement activities in place through May 7, 2021. OFCCP has an FAQ about applicability to certain settings.
- Hospitals that provide services to HMOs retained by the federal government are considered under the jurisdiction of OFCCP following litigation in 2013.
- Hospitals providing services to the Department of Veterans Affairs, Federal Bureau of Prisons, Department of Defense, Department of Health & Human Services (HHS) and Centers for Medicare & Medicaid Services (CMS) also are covered by federal affirmative action rules.
- What should a practice leader expect? As noted by Hall Render, OFCCP compliance audit notices require a response within 30 days; thus, it’s important to ensure compliance ahead of a potential audit and not risk the financial penalties if found in violation.
- BirdDogHR outlines top OFCCP violations, the most common violations that OFCCP auditors look for and simple steps to check compliance, including recordkeeping and specific recruiting/affirmative action programs.
How should a formal diversity program be developed and implemented?
SHRM recommends a strategic workplace diversity management plan with these core components:
- Identifying diversity competencies needed for particular jobs, paired with specific recruitment and sourcing strategies to achieve diversity reflective of the communities your organization serves
- Building a business case for diversity relevant to your organization’s mission and vision, along with leadership buy-in
- Onboarding of new employees that emphasizes your diversity goals, plus ongoing training and development to support employees’ cultural competencies
- Focusing on employee retention in line with your diversity plan goals
- Externally marketing and advertising your organization’s diversity plan into the communities you serve to help welcome patients/customers and make them comfortable
- Ongoing measurement of performance relative to your diversity plan’s goals, as well as accountability to promote achievement of desired results.
Understanding the commitment for a diversity program
A formal diversity program does not reach its goals with immediacy. Depending on the rate of turnover within an organization, a formal diversity program can take years to improve toward goals — and even then, the ongoing work to sustain those gains means continued buy-in from leadership.
When Robert Wood Johnson University Hospital set forth new diversity goals to ensure certain groups were not underrepresented, as reported by Modern Healthcare, it included a three-year plan to set up a mentoring program, analysis of its succession planning program and embedding specific diversity and inclusivity goals into the organization’s operating strategy, as well as executive compensation being tied in part to those goals.
In three years, the hospital increased the number of minorities on the leadership team from 4% in 2012 to 32% in 2015. As noted in Modern Healthcare’s reporting, CulturaLink chief executive officer Yolanda Robles, who worked with the hospital on the initiative, said that the effort was not affirmative action: “It’s not about the numbers. It’s about really representing the communities you serve and making people feel welcome because there’s someone who looks like you working in the organization.”
It’s important to keep in mind that many diversity programs in corporate America have the potential to fall short of their goals. Writing for Harvard Business Review in 2018, a quartet of authors with University Corporation for Atmospheric Research (UCAR) and the University of Colorado-Boulder outlined five insights into creating a workplace diversity program that produces success:
- Go beyond focusing on bias reduction and make bystander intervention a focus to help employees understand how they can help if they see bias or harassment. This also can include training employees about how to talk about organizational diversity.
- Don’t focus your diversity programs simply on managers and organizational leaders; get non-managers and administrative staff involved.
- Keep diversity training primarily focuses on workplace issues, even though some work issues overlap with personal challenges outside the office.
- Ensure the program has continued engagement and accountability over time rather than a one-time-only training session.
- Ensure the workplace diversity program facilitators can be flexible in addressing the unique needs of your organization, in terms of structure, content and delivery.
- EEOC information on race/color discrimination
- HR’s Anti-Discrimination Law Primer (Strategic HR Solutions)
- “Trends in Racial/Ethnic Representation Among U.S. Medical Students” (JAMA)
Editor’s note: Other installments of the “Battling Bias” series include: