Near the end of a four-minute video that explains why she’s suing Hennepin Healthcare Services for racial discrimination, Dr. Tara Gustilo knits her eyebrows, looks straight at the camera, and implores the viewer, “Please join me in standing up for a pro-human medical profession.”
A nonpartisan free-speech advocacy group produced the video, flipping the script on what most people might expect from a discrimination lawsuit. With uplifting music and a staged workspace as backdrop, Gustilo, who is Filipina, claims she was discriminated against for her opposition to critical race theory. (Critical race theory is a framework for examining systemic racism that has become a wedge issue for conservatives.)
The federal lawsuit, filed in Minnesota, cites racial discrimination in Gustilo’s demotion from her role as Chair of Department of Obstetrics and Gynecology. The suit also claims that Hennepin Healthcare used a system of “racially segregated” care in its OB-GYN department.
Gustilo, represented by Upper Midwest Law Center (UMLC), a public-interest law firm that has recently filed lawsuits related to critical race theory, is pursuing an employment law case about a specific personnel matter. But the lawsuit also makes claims about equity-based medical practices. And the legal outcome of this case could have broader implications for the health care of people of color.
In the video, Gastilo explains that an initiative she spearheaded to understand birthing traditions from different cultures “morphed” from “multi-cultural care” to “segregated care.”
“For example, Black caregivers providing care for Black patients,” she says in the video. “Now why would people claiming to fight racism want segregation?”
Hennepin Healthcare rejects that description, according to Senior Assistant Hennepin County Attorney Martin D. Munic, who is representing the hospital system.
“Assuredly, race segregated treatment of patients is not the policy or practice of Hennepin Healthcare,” Munic wrote in a response to a separate complaint Gustilo filed with the Equal Employment Opportunity Commission on August 19, 2021. (The Equal Employment Opportunity Commission is the federal agency that enforces civil rights laws in the workplace.)
Gustilo started posting her disagreements with critical race theory on social media after the murder of George Floyd, according to Gustilo’s lawsuit and a response to her federal employment claim filed by Hennepin Healthcare. Soon after, her criticisms of critical race theory and Black Lives Matter became apparent at work.
The case is the latest in a series of lawsuits that allege that policies intended to even the playing field for patients of color amount to discrimination against white patients. Two advocacy groups backing the lawsuit, the Foundation Against Intolerance and Racism (FAIR)—the group behind Gustilo’s video—and America First Legal, have supported similar cases locally and nationally.
In Minnesota, for example, the state Department of Health ended a scoring system that prioritized monoclonal antibody treatments for non-white COVID-19 patients after America First Legal challenged the practice in a lawsuit. Utah scrapped their protocols a few days later. A similar suit against New York City is ongoing.
A Mayo-trained physician ascends to department head at Hennepin Healthcare
Tara Gustilo’s medical career presents a picture of high achievement and professional success. In the video explaining her case, Gustilo emphasizes her undergraduate education at Harvard University, and her medical degree from the Mayo Clinic. She makes a point of celebrating her multiracial children.
According to the lawsuit, Gustilo worked on a Navajo reservation in Chinle, Arizona, and at the Cleveland Clinic before joining HCMC in 2008. She lives in Minnetonka. In her bio for Hennepin Healthcare, she writes,
??I am married to a wonderful man and have three children and a stepson. My non-professional interests include sewing, knitting, making stained glass, listening to music, reading, yoga, hiking, and camping.
Hennepin Healthcare appointed Gustilo interim chair of the OB-GYN department in May of 2015. The supervisory role put her in charge of 14 doctors at the downtown hospital campus, a safety net hospital that serves the most diverse patient base of any hospital in the state. The promotion came with a salary that ultimately reached $493,293 a year, according to the lawsuit.
The appointment made sense: Gustilo put up some of the highest patient satisfaction rates in Hennepin Healthcare, according to the lawsuit. (During the pandemic, most of her patients kept coming in, while many patients in the wider practice stayed away from doctors’ offices.) At one point, Gustilo even appeared on a billboard in downtown Minneapolis advertising Hennepin Healthcare.
At first, it seems that few people complained about Gustilo’s leadership. But there were early hints that her views on race didn’t align with her team’s, according to Hennepin Healthcare’s legal filing. In 2017, two Black doctors complained to the hospital’s human resources team that they experienced a “pattern of microaggressions” and “subtle racism” at work. (Microaggressions are routine interactions and behaviors that reflect and communicate bias toward people in historically marginalized groups.)
The murder of George Floyd causes Dr. Gustilo to speak out about ‘riots’
After the murder of George Floyd, though, things seemed to change for Gustilo—both personally and at work, the lawsuit notes.
That spring, she refused to sign a letter of solidarity with patients that included the word “unrest” to describe the turmoil across the Twin Cities; Gustilo argued for the word “riot.” By summer of 2020, Gustilo was posting her rejection of critical race theory on Facebook, and criticizing Black Lives Matter.
According to the lawsuit, Gustilo “discovered” that critical race theory touts a “zero sum racial conflict” and “seeks to remedy that by discriminating against individuals.” She came to believe that critical race theory “rejects the principle of equality under the law,” and labels it “a repudiation” of the Civil Rights Movement, the lawsuit says.
Gustilo expressed other views that appear to have rankled her coworkers. On her Facebook page, Gustilo referred to COVID-19 as “the China virus” and voiced her support for Donald Trump. The posts “surprised and disturbed” friends and colleagues, according to Hennepin Healthcare’s response to a federal employment complaint filed by Gustilo. They also concerned Hennepin Healthcare, since Gustilo had previously identified herself on Facebook as chair of the OB-GYN department.
In July of 2020, Gustilo wrote a letter to the CEO and board of Hennepin Healthcare warning that the unrest in the aftermath of George Floyd would cause “loss of life and property.” Here, she cited FBI data that she said indicated that police were not “warrantlessly shooting black people,” according to Hennepin Healthcare.
She urged Hennepin Healthcare leaders to “hold open discussions regarding the data and acknowledge the disproportionate harm on vulnerable populations that could be anticipated by these actions.”
Doctors at Hennepin Healthcare say Dr. Gustilo is ‘injecting her own political views into the workplace’
By fall of that year, at least four OB-GYN doctors told leadership that Gustilo “was injecting her own political views into the workplace and causing great discomfort among the staff,” according to Hennepin Healthcare’s response to the Equal Opportunity Employment Commission complaint.
At a meeting that October, Hennepin Healthcare’s human resources department relayed to Gustilo that some members of her team were afraid of her and believed her Facebook posts were racist.
Gustilo’s lawsuit claims that no one questioned her leadership until “she began to vocalize her opinions regarding race that are consistent with the views of Martin Luther King, Jr., the Civil Rights Movement of the 1960s, Title VII, and the Minnesota Human Rights Act.” (Title VII of the Civil Rights Act of 1964 outlaws discrimination on the basis of race, color, national origin, sex, sexual/gender identity, or religion.)
The group FAIR frequently uses Martin Luther King’s quotes about “colorblindedness”: Its website banner image features the civil rights leader, and its diverse board of advisors includes Ayaan Hirsi Ali (a Somali-born feminist author), Megyn Kelly (the former Fox News host), Steven Pinker (a widely published Harvard cognitive psychologist), and John McWhorter (a Columbia University linguistics professor and New York Times columnist).
The lawsuit, filed by co-counsels Daniel Cragg and Doug Seaton, goes on to describe the way Gustilo viewed critical race theory: as “fashionable,” “anti-liberal,” and “race essentialist.” These views—while posted on social media, outside the workplace—allegedly created “trauma” and “discomfort” among her team at work, the lawsuit says.
People in the department resented her “nonconformance,” the lawsuit alleges, and said they were unable to work with her.
Hennepin Healthcare offered a mediator to improve Gustilo’s relationship with her team, and hired a human resources consultant to examine morale in the department and produce a study on the findings. In late 2020, the team interviewed 14 of Gustilo’s colleagues, according to Hennepin Healthcare’s response to the employment complaint. The human resources study stated that “Gustilo’s behavior had traumatized the department. Recurring themes included that Gustilo would not listen to suggestions or different viewpoints, and doctors feared retribution if they disagreed with her.”
Hennepin Healthcare’s response to Gustilo’s equal opportunity employment complaint spells out what allegedly happened next. When Hennepin Healthcare presented Gustilo with the report on January 8, 2021, the employer asked her to consider voluntarily stepping down as chair. When Gustilo refused, saying that the demotion was due to her “political” beliefs and support for Trump, 13 of the 14 doctors from the OB-GYN department wrote a letter to Gustilo detailing their lack of confidence in her leadership and outlining how she had lost their trust.
At a subsequent meeting on January 15, 2021, some doctors sobbed as they explained why Gustilo shouldn’t continue to lead the department, according to Hennepin Healthcare’s response.
In April 2021, 25 members of the Medical Executive Committee, the group that makes recommendations to the health system’s board of directors, voted to remove Gustilo from her position as chair. The only vote against the removal came from Gustilo herself; one colleague abstained.
Gustilo concluded that the demotion amounted to discrimination against her as a person of color. In the lawsuit, she says that she was being punished for her “internalized whiteness” and for rejecting critical race theory.
With the help and support of FAIR and the Upper Midwest Law Center, Gustilo filed an Equal Employment Opportunity charge in June of 2021, alleging “that she had been discriminated and retaliated against on the basis of her race and for her advocacy for compliance with Title VII.”
In February, 2022, Gustilo followed that complaint by filing a lawsuit seeking damages in excess of $75,000.
“We provided the EEOC with clear evidence that Gustilo’s removal as department chair was based solely on her performance as a leader,” Hennepin Healthcare media relations wrote in a statement to Sahan Journal. “In response, she was no longer able to successfully lead the department, but is still working in the same clinical department. Any other narrative is simply not supported by facts.”
Addressing race in OB-GYN care
Gustilo’s lawsuit doesn’t end with claims of personal discrimination, however. The suit also asserts that the health care system “fosters a discriminatory environment.” And the primary example she cites is the birthing program she says she created to better understand various traditions and cultures of the diverse patient population at Hennepin Healthcare. This program, she says, morphed into “racially segregated care.”
In this regard, Gustilo’s arguments run into an emerging stream of study about health equity, some of it connected to researchers at the University of Minnesota. These researchers point to the negative health outcomes suffered disproportionately by people of color, ranging from prostate cancer to asthma to COVID-19. These studies suggest that some types of health care interventions can level the playing field.
Alyssa Fritz, who manages research and policy work for the Center for Antiracism Research for Health Equity, points to growing evidence about the value of racially concordant health care. “There is research that it’s linked to patient satisfaction, better adherence to treatment plans and improved communication for Black patients and providers,” Fritz said.
In 2021, the Food and Drug Administration declared it “ethically appropriate” to prioritize COVID-19 treatments such as monoclonal antibody infusions for minority patients, because certain racial and ethnic groups were experiencing higher rates of COVID.
The prospect of lawsuits in Minnesota and Utah over these COVID treatment protocols coincided with the states ending their equity-minded treatment practices.
Health disparities are perhaps most evident in the field of maternity care: Pregnancy-related deaths are about four times higher for Black and Native American women between ages 30 to 34 than for white women of the same age. And infant mortality rate is about twice as high for Black and Native American women than for white women.
Public health researcher and University of Minnesota associate professor Dr. Rachel Hardeman studies race-based birth disparities. A year ago, she launched the Center for Antiracism Research for Health Equity at the University of Minnesota, an institute dedicated to advancing antiracist research.
Peer-reviewed studies, she says, show that best practices in birthing can help reduce disparities. For example, recent research by Hardeman concluded that babies of Black women who gave birth under the care of Black providers were half as likely to die as babies of Black women who didn’t have a provider of the same race.
Hardeman says the legality of the practices she’s researched has never come up.
“My research and other research shows that these sorts of things matter for how patients are treated and cared for and their outcomes,” Hardeman told Sahan Journal.
Can ‘racially concordant’ care stand up to legal challenges?
Gustilo’s lawsuit could force the federal courts to wrestle with whether this type of care complies with a variety of civil rights and employment statutes. A favorable ruling on Gustilo’s claims could reveal that “racially concordant care” is vulnerable to legal actions that claim the practices amount to “race-based hierarchies” and “segregation.”
University of Minnesota emeritus professor Stephen Befort, who specializes in labor and employment law, said that courts usually defer to best practices. But some treatments could be deemed illegal, Befort explained, if they’re construed as affirmative action: that is, a preferential-type practice designed to help underprivileged groups.
Gustilo declined to answer questions about the case, but Doug Seaton, the Edina-based founder and president of the Upper Midwest Law Center who is representing Gustilo, provided a statement on her behalf.
“Dr. Gustilo’s case is just one example of the harmful influence of critical race theory in the medical field,” Seaton said. ”Critical race theory’s focus on race is causing segregation of patients and care providers, will reduce the quality of care for patients, and promote race-based hierarchies for care.”
Seaton maintains that Gustilo’s case isn’t just about addressing a human resources issue, but “sounding the alarm on what is happening in hospitals across the country.”
And while Befort, the U of M professor, said this particular case may be challenging for Gustilo to win, it could have broader implications.
“My gut reaction is that it’s an uphill climb to challenge a supervisory appointment decision,” he said. By this, Befort means that Gustilo wasn’t fired, but demoted—and “employers have considerable discretion to select supervisors.“
But he noted that the case doesn’t have to succeed to exert influence over racially concordant health care. “The mere fact of a lawsuit claiming these violations may be an attempt to deter such decisions in the future. It’s very common for advocacy organizations to bring cases that sort of send the signal or message more broadly: ‘We’re watching what you do, and be careful out there.’”
A pre-trial scheduling conference for Gustilo’s lawsuit is scheduled for April 12.