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This trite phrase is attributed to Harry Gordon Selfridge, Sr., who worked for Marshall Field's in Chicago –now Macy's – in the late 1800s. It is a short-hand expression for the idea that, whatever the customer wants, demands or expects, good business demands that a merchant should deliver. Having worked in the retail industry myself, I have my personal doubts about the universality of this expression. Now working to advise employers, I know that blind adherence to this rule can be disastrous. Two recent cases illustrate my point.

The first concerns Brenda Chaney,who was a black nursing assistant at a nursing home in southern Indiana. A patient at the nursing home voiced a "preference for no black" assistants or nurses. Ms. Chaney's employer noted this preference in the patient's chart and,adhering to the time tested maxim "the customer is always right", implemented a policy of complying with the patient's overtly racial preference. Ms. Chaney was instructed not to assist the patient or even enter her room. Ms. Chaney filed suit and complained that this policy created a racially hostile work environment, but the trial court dismissed her claims. The Court of Appeals,however, reversed and ordered a trial on Ms. Chaney's claims. The Court held that the employer was not obligated to comply with the patient's racial preferences and that its decision to do so was a voluntary business decision,which a reasonable jury could conclude created a racially hostile work environment.

The second case also concerns the healthcare industry. Tammie Bush (and a class of co-workers) provided 24 hour in-home nursing care for homebound patients in Houston, Texas. Ms. Bush and her co-workers were required to spend the night in the home of a particular male patient, who repeatedly fondled, groped and accosted them while they slept. The employees complained (verbally in writing) to their manager, who did nothing.The employees then resigned and filed discrimination charges claiming they were constructively discharged. The EEOC filed suit itself claiming that the employer's failure to protect its employees from the sexual harassment of its clients was a violation of Title VII – just as if the employer had permitted a co-worker to have engaged in the same conduct.

Employers face difficult business decisions every day.Perhaps, one of the most difficult decisions is when and how to tell a customer that his treatment of an employee is not right. The customer must be told that,while his business is appreciated, he is not free to create liability for the employer.

For more information related to discrimination cases, please contact Kelly Kolb.