Discrimination Based on Religion Within

Discrimination Based on Religion

Within the medical community many individuals have the right to refuse to provide care which transgresses from religious beliefs. Doctors have the right to refuse to prescribe medications such as birth control, morning after pills, abortificants, large doses of medication or procedures that will end or prolong life. Pharmacists have the right to refuse to provide such prescriptions, nurses the right to ask others to provide certain types of care if they are against their own religious standards. Yet, it must also be made clear that such provision of care or refusal to provide such care is rarely if ever done in urgency or in cases of emergent physical status of the patient. In an emergency the expectation of all is that such care will be provided as a standard that will save the life of the patient, regardless of the individual employees belief. In some cases even regardless of the beliefs of a patient such procedures are performed to save life.

The difference from a moral/ethical standpoint between a physician, nurse, anesthetist or pharmacist from refusing care in non-emergent situations and that which occurred as a result of the refusal of Mr. Max Comodo to assist in the case of triage on an emergent accident victim who needed blood transfusions is the fact that the case was emergent and Comodo was available to provide care, where as seeking an alternative care provider put the emergent patient's life at grave risk. The actions of the hospital to dismiss Comodo for insubordination for refusal to provide care in an emergency is therefore justified, and is further justified by the fact that his dismissal was a result not only of his refusal to provide care but his insubordinate attitude with regard to care. "Last year the Hospital had to request that Mr. Comodo assist other personnel in an emergency where a person had a car accident and a blood transfusion was necessary. Mr. Comodo refused, alleging that this was not his job or his responsibility. He also stated that people die when God wills it and that no one on earth had a right to interfere with that." (case study) Additionally, though Comodo had previously stated his beliefs and made other arrangements in situations where blood transfusions were indicated, he never made legal arrangements with the organization that detailed his intentions to remove himself from such cases, and it is therefore not a clear case of direct religious discrimination. (Ghanea, 2003, p. 73) as an aside providing any kind of intervening care, according to his stated beliefs, mentioned above including but not limited to surgical assist even where transfusions were not provided to the patient would seem contrary to his chosen profession. The hospital also has an obligation to provide such emergent care, regardless of the situation, and not doing so or delaying care is a clear demonstration of unsafe practice, a liability directly resulting from Comodo's refusal to provide care. The dismissal of Comodo was therefore not arbitrary or discriminatory, as seeking employees who are willing and able to provide emergent care and excluding those who refuse to do so is in the best interest of safe running of the hospital. (Dicesare, 1995, p. 49) There are also institutions in the U.S. And elsewhere who have provisional services which provide care without the performance of transfusions and patients are made aware of this before they arrive and employees are also aware of this prior to employment and sign employment agreements that reflect it. In the case of the Misericordioso Hospital in Puerto Rico there was no such employment agreement and Comodo's employment would be assumed to be contingent on his ability to provide all the care that is needed of him in his position, including but not limited to assisting on cases where transfusion was provided.

Jurisprudence on the issue of blood transfusion and other non-native treatment to individuals surrounds mostly the allowance of the refusal of the individual to receive care, but does not necessarily apply to employment issues associated with employee religious belief and refusal to provide services. (Cawthon, 2004, p. 246)

In the case of Comodo the development of the situation was likely limited in scope as emergent care was often shuffled away from Comodo in transfusion cases, by him without regard for his duties, and yet his superiors never took formal action against him, likely for fear of being deemed discriminatory. The only sticking point as a labor relations advisor is that Comodo's 20 years of service and employment reviews did not reflect his superiors desires or actions prior to his dismissal in this case. In other words the hospital should have taken action in the form of either releasing him formally from the obligation to assist on such cases or given him due documented warning that such refusal might result in his termination. This could have been done through employment agreements that reflected a full listing of Comodo's responsibilities, including but not limited to inclusion of emergent triage cases that might require transfusions or conversely by including an allowance for his refusal to do so on religious grounds. The bioethics committee of the hospital and the legal department of the hospital should have been briefed and allowed to give input on this situation prior to the development of an emergent case where insubordination could be utilized as grounds for dismissal of Comodo. Additionally, Comodo, with 20 years of service should have been made aware that his employment might someday be contingent on such a refusal of care. The case for insubordination is made more clear when inclusion of Comodo's explicit statement of his own religious beliefs, in the presence of other staff, as well as possibly the patient and/or family of the patient when he refused to provide life saving care. In this situation the actions of the hospital could have been better served had the situation been more clearly defined and Comodo been given the opportunity to protest such care in a non-emergent situation.

Prior to this situation Comodo did not seem to have been the victim of unfair discrimination, at the hands of other staff or supervisors, as can be seen by his previous ability to refuse to provide such care without stigma or threat of or dismissal from employment.

Individuals are stigmatized (i.e., bear stigmas or marks) to the extent that there is a negative (discrediting) discrepancy between their virtual social identity and their actual social identity (Goffman, 1963; Jones et al., 1984). A virtual social identity is a perceiver's conception (e.g., prototype, stereotype) of what a target should be like in terms of a host of factors, including race, physical appearance, moral character, religious beliefs, sexual orientation, nationality, and personality. It generally reflects what the perceiver considers to be acceptable, normal, or desirable. In contrast to a virtual social identity, an actual social identity is a perceiver's views about a target's actual characteristics, which may be real (i.e., verifiable) or assumed (i.e., inferred by the perceiver). (Stone-Romero, 2005, p. 257)

Though religious organizations have been frequently upheld in their right to discriminate against potential or real employees based on religious tenets there is also a clear sense that the right soft h individuals post employment are limited unless the individual signs a statement prior to employment as a contingency to employment or voluntarily does so upon hire. In the case of Comodo, neither the institution nor Comodo signed any declaration of beliefs that would preclude him from employment if he refused to provide care that was divergent from his belief system. (Carter, 1997, p. 1627) Therefore it can be assumed that a court would see in favor of Comodo, unless such a declaration can be produced that either excludes him from such care or makes his employment contingent on it. Yet, in this case it is not necessarily the fact that he refused to provide care but as the employer's dismissal letter indicates had more to do with Comodo's attitude upon refusal to provide such care and the position it placed the hospital in. "The day after the incident, Mr. Comodo received a dismissal letter as a result of insubordination; the letter also stated that his attitude was a threat to the institution's proper functioning." As the institution is clearly a provider of emergent care Comodo's attitude, if sufficiently inappropriate could very well be seen as a cause for dismissal, or at the very least a strong warning as well as the development of an employment agreement that reflected either his inability to retain employment if he continued to openly refuse to provide such care or again proved insubordinate in his refusal to do so. Again in many cases it is the refusal of care on the part of the individual receiving care that is reflective of the jurisprudence or in most cases by proxy, for say minor children or as a result of emergent care of individuals where treatment denial is made by the family of the individual:

In a constitutional world governed by our principle that the state must stay out of the way of the struggle toward God, this result is at least reason to pause. Although Lundman was evidently the first case to award damages for faith healing, prosecutions of parents whose children die under similar circumstances are reasonably common.(64) Many of the cases involve Christian Scientists who do not accept the superiority of contemporary medicine to their faith-based care; and many others involve Jehovah's Witnesses, who do not accept blood transfusions because of the biblical prohibition on ingesting blood.(65) but official punishment is surely not the ideal response to the understandable and entirely justified effort to protect the life of the sick child. Usually, the states try to prevent the death of the child rather than punish it later. The typical case involves a petition from a hospital for the temporary dissolution of the parents' rights over the child and the appointment of a guardian ad litem to make the decision on the surgery or transfusion. After the decision is made and the procedure has been performed, the parents' rights are restored. See, e.g., in re McCauley, 565 N.E.2d 411, 414 (Mass. 1991) (affirming the authorization of a child's blood transfusion, despite the protests of her Jehovah's Witness parents); State v. Perricore, 181 a.2d 751, 759 (N.J. 1962) (requiring a blood transfusion for the child of Jehovah's Witnesses, despite the religious objection of the parents); O.G. v. Baum, 790 S.W.2d 839, 841 (Tex. Ct. App. 1990) (denying relief to Jehovah's Witnesses whose child was appointed a temporary managing conservator with the authority to consent to blood transfusions for the child). (Carter, 1997, p. 1627)

The case of reverse discrimination against Comodo is limited in jurisprudence as no such case has been expressly discussed or ruled upon by the courts. In short the courts could rule in either direction and a proper response to the situation might be an out or court settlement. In the alternative this case might reach his standing and be heard by a higher court who, depending on the whole of the situation could find in favor of Comodo on the grounds that it was never made clear to him that his refusal to provide certain care on the contingency of his religious beliefs could result in his termination. If such documentation is in existence, the hospital might have grounds. Alternatively testimony by individuals involved in the situation could effectively prove that Comodo's attitude in the situation was the reason for his behavior being deemed insubordinate, rather than his actual refusal to provide care.

A person needs a blood transfusion, a bone marrow transplant, or a new kidney. (81) the most suitable donor declines to contribute it. A lawsuit is brought, or legislative action is sought. How would each theory approach the questions involved -- the doctrinalist would look to the legal landscape, to judicial and legislative decisions that seem analogous, so that what is done here is "like" what is done there. And at first glance the topography seems to be unusually lucid. We are, after all, still primarily a libertarian rather than a communitarian polity. (82) Autonomy and individualism are powerfully represented in the legal topography however they may have gotten there and however justified or desirable they may ultimately be.And so the doctrinalist's initial conclusion would be that we do own our own bodies. For this he or she would cite innumerable "topographical landmarks/precedents" from any number of parts of statutory, constitutional, and common law: the fact that normally volunteering to save someone else's life is not required; (83) the constitutional prohibitions on involuntary servitude; (84) the legal sale of blood and hair; (85) the seeming right to donate body parts to those to whom we wish to give them (including, of course, the laws that specify how a person can establish that his or her organs may be used for transplants after his or her death); (86) the Supreme Court decision that seems to recognize a person's constitutional right to prohibit further medical treatment and to die more or less in peace; (87) the right to be informed and consent before medical interventions; (88) and many more. (89) it is little wonder that the courts that have faced the issue of ownership of body parts have concluded that such parts belonged to their possessors. (90) (Calabresi, 2003, p. 2113)