Medical Residency Discrimination and Retaliation

As the appellate court recently held in the groundbreaking Makovoz Law case of Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 415 "Statistics showed that less than 1 percent of residents are terminated nationwide, making termination a rare event." 

However, terminations for minorities and women may constitute a disproportionate amount of that reported 1 percent.  Indeed, in one California internal residency program, as the California Appeals Court also noted discretionary terminations were actually “100 percent women.”   Id. at 415. 

A 2020 Study published in the JAMA, revealed approx.. 25% residents surveyed reported discrimination based on race/ethnicity or religion, with the highest reports by black residents, including being subjected to different evaluation standards.  Female residents were also more likely to report discrimination, and many of those reports actually occurred after PGY-1, and particularly after violations of duty hours limits.[1]

A September 2022 Report published in Academic Medicine found that minority residents (race/ethnicity) received lower scores on evaluations in medical knowledge, system based practice, practice based learning and improvement, professionalism and interpersonal and communication skills than their non-minority peers.  Male attendings in particular tended to rate minority residents lower in professionalism.[2]

In fact, negative evaluations, particularly those solicited by program directors outside of the normal evaluation process (i.e., private emails not in residents files or on MyEvaluations) have been known to magically appear in sharp contrast to the positive evaluations actually shown to residents.   The ACGME, whose accreditation is required for receiving Medicare funding has specific requirements, many of which may not be adhered to, particularly where there is retaliation for complaints the resident already made, especially to the ACGME, HR, or DIOs.

A 2019 Report from the ACGME showed that minority residents accounted for the highest percentage of dismissed residents in the studied periods, with black residents having the highest percentage including in internal medicine, surgery, anesthesiology, OBGYN, psychiatry etc..,[3]

Some specialties are notoriously problematic.  One study showed that among surgical residents, 31.9% reported gender discrimination, 16.6% reported racial discrimination and 10.3% reported sexual harassment; more specifically 65.1% of female residents reported gender discrimination and 19.9% sexual harassment.  Many reported as a consequence high rates of suicidal thoughts.[4]  Some residency programs have as many as three or more residents who committed suicide, and many more that have been forced to take leave due to the stress created by Programs targeting them. 

Another recent published study found that 80% of female surgical residents and 17% of men reported experiencing gender discrimination, and 43% of women experienced sexual harassment.[5]   A study of emergency medicine residents found 45% reported discrimination/harassment.[6]

International Medical Graduates report rampant discrimination, [7] with some studies showing as high as 70% of such residents reporting violations of law.

Disability discrimination, including due to psychological issues, ADHD, and physical disabilities are also unlawful and not uncommon.

Residents have rights.  California law holds they are employees under the law, and that where discrimination or retaliation are concerned, the residency program is not entitled to any deference in their decisions.  That is a vital holding that we helped get for all residents in California in the groundbreaking case of Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390.

And it is not just termination that is unlawful, as there is a range of adverse employment actions that are actionable, including negative evaluations, probations/remediations, non-renewals, failure to progress, false summative evaluations, false reports to prospective employers/interfering with residents ability to transfer to other positions etc.,  You do not need to be terminated for the employer to have violated FEHA and Title VII laws.

We represent medical residents, as well as physicians whose problems with their prior medical residencies have impacted their careers, including board certifications.