72 Am. U. L. Rev. 403 (2022).

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Abstract

Racial minorities in the United States, and Black people in particular, experience worse health outcomes and lower-quality medical care than White people do. Mounting empirical evidence indicates that for Black Americans, and perhaps other racial minorities, this gap can be narrowed if they are given the choice to receive care from physicians of their same race. Given the significant benefits of patient-physician racial concordance for people of color, this Article argues that medical providers who do not have enough physicians of color on staff to meet their patients’ needs should be permitted in some cases to make raceconscious physician-hiring decisions. Despite its broad proscriptions against employment discrimination, Title VII of the Civil Rights Act of 1964 recognizes there are certain situations in which employment discrimination is justified. The statute permits employers to discriminate if sex, religion, or national origin is a bona fide occupational qualification (“BFOQ”) reasonably necessary to the normal operation of the business. Congress excluded race from the BFOQ provision based on its judgment that race should never be a legitimate qualification for employment. This may have made good sense in 1964, but it is less defensible today in light of the now known benefits of patient-physician racial concordance for people of color. Consequently, Congress should amend Title VII to permit race-based BFOQs under the same narrow terms that courts have dictated for BFOQs based on sex, religion, and national origin. This would enable medical providers in certain cases to make race-conscious hiring decisions that would allow them to deliver more effective care to patients who prioritize racial congruence and cultural competency. If increasing access to physicians of color can lead to better health outcomes for some minorities—literally saving lives—then a race BFOQ for certain physician positions is at least as justifiable as other circumstances in which courts permit employers to legally discriminate.

* Associate Professor of Law, Gonzaga University School of Law. For helpful conversations and comments on prior drafts, I am grateful to Emily Waldman, Rick Bales, Stacy Hawkins, Ryan Nelson, and Jerome Gray, and to audiences at the 2021 Colloquium on Scholarship in Employment and Labor Law and the 2021 Central States Law School Association Annual Conference.