Vernellia R. Randall
I. VIOLATIONS OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS
OF RACIAL DISCRIMINATION
Racial Discrimination in Health Care in the United
States as a Violation Of the International Convention on the Elimination
of All Forms of Racial Discrimination, [a1] 14 University of Florida
Journal of Law and Public Policy 45-91 (Fall, 2002)
As indicated in the U.S. Report on CERD, the Federal Government has laws
that make it illegal to discriminate based on race (Title VI of the Civil
Rights Act of 1964).(161) The report fails to admit that the effort of the United
States in ensuring equal access to quality health care has not only been
ineffective and inefficient, but has also perpetuated racial discrimination.
Astonishingly, the United States fails to even mention its own assessment of
civil rights enforcement in health care conducted by the U.S. Commission on
Civil Rights.(162) In a two-volume critical analysis, the *68 Commission accused
the government of perpetuating disparities in health status and access:
[The government] has failed to enforce civil rights laws vigorously and
appropriately. The failure [of the government] to be proactively involved in
[civil rights] health care issues or initiatives has resulted in continuance
of policies and practices that, in many instances are either discriminatory or
have a disparate impact on minorities .... Thus, there remain disparities in
access to health care and in health care research and unequal distribution of
health care financing.(163)
Although Congress has enacted civil rights laws designed to address specific
rights, such as equal opportunities in employment, education, and housing, it
has not given health care the same status.(164) As a consequence, discrimination
in health care is uncorrected, which has the consequence of perpetuating
differences in health status.(165) Thus, in the area of health care, the United
States has failed to meet its obligation under Article 2(1)(a), Article
2(1)(c), Article 2(1)(d), and Article 5(e)(iv) of the Convention on the
Elimination of Racial Discrimination (CERD).
A. Article 2(1)(a)
Under Article 2(1)(a), "Each State Party undertakes to engage in no act or
practice of racial discrimination against persons, groups of persons or
institutions and to ensure that all public authorities and public
institutions, national and local, shall act in conformity with this
obligation."(166) Specifically, the United States has failed to "ensure that all
public authorities and public institutions, national and local, shall act in
conformity" with its obligation under Article 2(1)(a).(167) Throughout its 1999
report to the President and Congress, the U.S. Commission on Civil Rights
found significant weaknesses in the governmental enforcement efforts.
Specifically, the Commission noted:
The deficiencies in the [governmental] enforcement efforts ... largely are
the consequences of [a] fundamental failure to recognize *69 the tremendous
importance of its mission and to embrace fully the opportunity it has to
eliminate disparities and discrimination in the health care system. Although
[the government through the] Office of Civil Rights (OCR) has attempted to
identify noncompliance with the Nation's civil rights laws over the years, it
has failed to understand that all of its efforts have been merely reactive and
in no way have they remedied the pervasive problems within the [health care]
system. [The government's] failure to address these deeper, systemic problems
is part of a larger deficiency ... a seeming inability to assert its authority
within the health care system. As a result of the myopic perspective ... the
[government] appears unable to systematically plan and implement the kind of
... "redevelopment" policy that it so clearly needs.(168)
Further, the Commission found significant weaknesses in the enforcement
efforts of the Office for Civil Rights. In particular, the Commission noted
the governmental failure to implement many of the recommendations indicated by
the Commission in its 1996 report on Title VI enforcement.(169)
Despite some focus on the health of minorities, the government has generally
failed to enforce civil-rights laws vigorously and appropriately. The failure
of the government to be proactively involved in health care issues or
initiatives has resulted in the continuance of policies and practices that, in
many instances, are either discriminatory or have a disparate impact on
minorities and women.(170)
Thus, there remain disparities in access to care, treatment, research, and
financing in the United States as a result of the U.S. failure to meet its
obligation under Article 2(1)(a).(171)
B. Article 2(1)(c)
Under Article 2(1)(c), "Each State Party shall take effective measures to
review governmental, national and local policies, and to amend, rescind or
nullify any laws and regulations which have the effect of creating or *70
perpetuating racial discrimination wherever it exists."(172) The United States
has failed to meet its obligation. While the United States has undertaken
extensive measures to review national laws and regulations which have the
effect of creating or perpetuating racial discrimination, it has failed to
make necessary revisions and modifications in the law as recommended by the
U.S. Commission on Civil Rights. As noted by the Commission:
In the United States today, there remain tremendous racial and gender
disparities in access to quality health care services and health care
financing, as well as in the benefits of medical research. Many of these
disparities continue to plague the Nation's health care system because the
[government] ... has failed to enforce the crucial nondiscrimination
provisions of the Federal civil rights laws with which it is entrusted. The
... enforcement operation is lacking in virtually every key area .... Most
significantly, ... [the government] generally has failed to undertake
proactive efforts such as issuing appropriate regulations and policy guidance,
allocating adequate resources for onsite systemic compliance reviews, and
initiating enforcement proceedings when necessary.(173)
The United States, while undertaking extensive measures to review the
national effects of creating or perpetuating racial discrimination, has failed
to "amend, rescind or nullify any laws and regulations" that have such
effects.(174) There has been little judicial activity in reviewing and shaping
antidiscrimination law in health care.(175) Despite taking five years to submit a
report under its obligation, the government's report failed to identify this
lack of oversight. Furthermore, the United States failed to review state and
local laws and regulations.
C. Article 2(1)(d)
Under Article 2(1)(d), "Each State Party shall prohibit and bring to an end,
by all appropriate means, including legislation as required by circumstances,
racial discrimination by any persons, group or organization."(176) The United
States has failed to meets its obligation to "bring to an end, by all
appropriate means, including legislation," racial *71 discrimination in health
care.(177) For instance, the U.S. Congress has not enacted civil- rights laws
relating to health care, even though it has enacted specific
antidiscrimination laws in the areas of employment, education, and housing.
(178)Unequal access to health care is a nationwide problem that primarily affects
women and people of color.(179) According to the U.S. Commission on Civil Rights:
For 35 years, [the government through the Department of Health and Human
Services (HHS)] and its predecessor agency, the Department of Health,
Education, and Welfare (HEW), have condoned policies and practices resulting
in discrimination against minorities and women in health care. In many ways,
segregation, disparate treatment, and racism continue to infect the Nation's
health care system. [The government] ... has pursued a policy of excellence in
health care for white Americans by investing in programs and scientific
research that discriminate against women and minorities. [The government] ...
essentially has condoned the exclusion of women and minorities from health
care services, financing, and research by implementing an inadequate civil
rights program and ignoring critical recommendations concerning its civil
rights enforcement program. The Commission, the HHS Office of Inspector
General, and the HHS Civil Rights Review Team have offered many
recommendations for improving civil rights enforcement ... However, failure to
implement these recommendations has resulted in failure of the Federal
Government to meet its goals of ensuring nondiscrimination and equal access to
health care for minorities and women."(180)
D. Article 5(e)(iv)
Under Article 5(e)(iv),
In compliance with the fundamental obligations laid down in article 2 of
this Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national *72 or ethnic origin, to
equality before the law, notably in the enjoyment of the following rights: ...
e) Economic, social and cultural rights, in particular: ... (iv) The right to
public health, medical care, social security and social services.(181)
The United States has failed to "prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, ...
[including] [t]he right to public health, medical care, social security and
social services."(182) Such failure has been noted by the U.S. Commission on
Over the past 35 years the U.S. Commission on Civil Rights has been
monitoring health care access for minorities and women, focusing primarily on
the important role civil rights enforcement efforts can play in providing
equal access to quality health care. Although there have been some
improvements in accessing health care over the last three decades, the timid
and ineffectual enforcement efforts of the [government through the] Office for
Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS)
have fostered, rather than combated, the discrimination that continues to
infect the Nation's health care system. This is evident in the segregation,
disparate treatment, and racism experienced by African Americans, Hispanic
Americans, Native Americans, Asian Americans and Pacific Islanders, and
members of other minority groups, as well as in the persistent barriers to
quality health care that women continue to confront.(183)
As outlined above, discrimination in health care delivery, financing, and
research does exist. This is due, in significant part, to the failure to
enforce federal laws designed to address inequality in health care.
Specifically, the Commission noted that the government's failure to remove the
historical barriers to access to quality health care perpetuated
*73 From 1980 to 1999, the government has also neglected its civil-rights
enforcement responsibilities.(185) This neglect is well documented.(186) According
to the U.S. Commission on Civil Rights:
[The government's] steadfast refusal to address concerns about the quality
of its efforts indicates a fundamentally limited view of the role civil rights
enforcement can and should play in the health care industry, a view that is
deeply ingrained within the culture of the Department of Health and Human
Services (HHS). What makes this disregard of recommendations for vigorous
civil rights enforcement efforts particularly shameful is that HHS provides
Federal assistance to medical programs and facilities that save lives every
day. While the activities of agencies charged with protecting the rights to
equality of opportunity in education and employment are matters of tremendous
importance, the failure to conduct strong civil rights enforcement in health
care literally can mean the difference between life and death [for many people
It is important to remember that all the major actors in the government have
failed to fulfill their responsibilities to act to eliminate discrimination.
The President "failed to offer the oversight, support, and assistance to civil
rights enforcement."(188) Congress not only failed to provide oversight, it
drastically reduced appropriations.(189) While the President and HHS implemented
a number of minority health initiatives, "none of these efforts contains a
strong civil rights enforcement component or attempts to develop the key role
that OCR should be playing in these efforts".(190) The U.S. Commission on Civil
Rights notes that this lack of civil- rights enforcement is "particularly
ineffective when compared with some of the more sophisticated civil-rights
enforcement programs the Commission has evaluated."(191)
Finally, the Commission notes that this lack of enforcement is of particular
*74 [b]ecause many new forms of discrimination against minorities have
emerged as the Nation has moved from "fee-for-service" medicine to managed
care. Without appropriate ... [civil rights enforcement] ... neither
recipients or beneficiaries of Federal funding, nor OCR investigative staff
can develop a clear understanding of what constitutes discrimination by
managed care and other health care organizations.(192)
One such form of discrimination is embedded in the business necessity
rationale where, under the guise of cost cutting and fiduciary risk reduction,
policies and practices that are biased against racial minorities are
considered justifiable discrimination. The CERD term "unjustifiable disparate
impact" indicates that the Convention also covers those practices that appear
race- neutral but create statistically significant racial disparities and are
unnecessary, i.e., unjustifiable.(193)
161. [FN161]. U.S. State Report, supra note 24.
162. [FN162]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 52-64.
163. [FN163]. U.S. COMMISSION ON CIVIL RIGHTS I, supra note 2, at 189.
164. [FN164]. Id. Preface, vii.
165. [FN165]. Id. at 189 (finding that the "failure to recognize that differences in health care delivery, financing
and research are discriminatory barriers to health care translates into and perpetuates differences in health
166. [FN166]. CERD, supra note 10, art. 2(1)(a).
167. [FN167]. Id.
168. [FN168]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 275.
169. [FN169]. Id. at 275; see also U.S. Commission on Civil Rights, supra note 135, at 677 (A comprehensive
evaluation and analysis of the U.S. Department of Justice's performance in its leadership and coordination
responsibilities for Title VI that includes the U.S. Commission on Civil Rights' analysis of the Title VI
enforcement efforts of ten federal agencies and ten subagencies. Includes recommendations).
170. [FN170]. U.S. COMMISSION ON CIVIL RIGHTS I, supra note 2, at 190 (emphasis added).
171. [FN171]. See, e.g., id.
172. [FN172]. CERD, supra note 10, art. 2(1)(c).
173. [FN173]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 275.
174. [FN174]. CERD, supra note 10, art. 2(1)(c).
175. [FN175]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 59.
176. [FN176]. CERD, supra note 10, art. 2(1)(d).
177. [FN177]. Id.
178. [FN178]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 274-75.
179. [FN179]. U.S. COMMISSION ON CIVIL RIGHTS I, supra note 2, at 1, Preface.
180. [FN180]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 280.
181. [FN181]. CERD, supra note 10, art. 5(e)(iv).
182. [FN182]. Id.
183. [FN183]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 274.
184. [FN184]. Id. at 275-76.
185. [FN185]. Id. at 276.
186. [FN186]. Agencies that document this disparate enforcement include the Commission on Civil Rights,
Department of Health and Human Services, the General Accounting Office, the House of Representatives'
Committee on Government Operations, HHS' Office of Inspector General, and the Department's own Civil Rights
187. [FN187]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 275-76.
188. [FN188]. Id.
189. [FN189]. Id.
190. [FN190]. Id.
191. [FN191]. Id.
192. [FN192]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 275-76.
193. [FN193]. Definition of discrimination (art. 1, par. 1): 22/03/93. CERD General recommendation. 14 (General
Comments) (in considering the criteria that may have been employed, the Committee will acknowledge that
particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to
the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group
distinguished by race, colour, descent, or national or ethnic origin.).