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Employment Law Blog
James Tarquin, P.A
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Does A National Origin Harassment Claim Require Evidence The Harasser Referred To Where The Victim Is From?

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Under Title VII of the Civil Rights Act of 1964 (Title VII), it is an unlawful employment practice for an employer to discriminate against an employee because of that employee’s national origin.  National origin harassment is a form of national origin discrimination prohibited by Title VII.  An actionable claim for national origin harassment exists when the harassment is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment. As explained below, discrimination can also occur when it does not specifically refer to the victim’s actual origin.

Having extensive experience representing employees who have endured national origin harassment in the workplace, our Alachua County, Florida employment discrimination attorneys have learned that employers often defend national origin harassment cases by arguing that some of the harassing comments must specifically refer to where the victim is from in order for the harassment to constitute harassment on the basis of national origin.  For example, if the victim is from Cuba, employers contend that some of the harassing comments must refer to Cuba or the victim’s Cuban status.  Without specific references to where the victim is from, employers maintain, the harassment was not based on the employee’s national origin.  The decision by the U.S. Fifth Circuit Court of Appeals in EEOC v. WC & M Enterprises, Inc., 496 F.3d 393 (5th Cir. 2007) illustrates that a victim does not have to show that some of the harassing comments specifically referred to where he or she is from in order to establish that the harassment was based on national origin.

Employee Ridiculed Based On National Origin

In that case, the U.S. Equal Employment Opportunity Commission (EEOC) brought an employment discrimination claim on behalf of Mohommend Rafiq (Rafiq) against WC & M Enterprises, Inc., d/b/a Streater-Smith (Streater-Smith).  The EEOC claimed, in relevant part, that Rafiq, who is from India, was harassed based on his national origin in violation of Title VII.  Rafiq was employed as a car salesperson at Streater-Smith’s automotive dealership.

After the September 11, 2001 terrorist attacks, Rafiq began experiencing problems with harassment.  A co-employee, Kliene, and a finance manager, Argabrite, began calling Rafiq “Taliban” whenever they saw him.  They also referred to him as an “Arab” even though Rafiq told them on numerous occasions that he was from India.  On one occasion, Kliene remarked to Rafiq, “Why don’t you just go back to where you came from since you believe that you believe?”  Kliene and Argabrite also mocked Rafiq’s dietary restrictions and need to pray during the workday.  Rafiq’s direct supervisor, Swigart, also called Rafiq “Taliban” on four or five occasions.  On one occasion, Swigart said, “This is America.  That’s the way things work over here.  This is not the Islamic country where you come from.”  According to Rafiq, this harassment continued through the end of his employment.

Comments Need Only Refer To National Origin Generally

The trial court dismissed Rafiq’s national origin harassment claim.  In doing so, the trial court concluded that Rafiq could not establish that he was harassed on the basis of national origin because “none of the harassing comments specifically referred to the fact that Rafiq was from India.”  The Fifth Circuit reversed the trial court’s decision and reinstated Rafiq’s national origin harassment claim.

In reversing the trial court, the Fifth Circuit explained that “a party is able to establish a discrimination claim based on [ ] national origin even though the discriminatory acts do not identify the victim’s actual country of origin.”  In order to have a claim of national origin harassment, the appellate court observed, it is enough to show that the victim “was treated differently because of his or her foreign accent, appearance, or physical characteristics.”  In fact, the court of appeals pointed out, “it is not necessary to show that the alleged discriminator knew the particular national origin group to which the [victim] belonged.”  Thus, a national origin harassment claim may still be established even when a co-worker “ignorantly use[s] the wrong derogatory ethnic remark” toward the victim.

The Fifth Circuit also found that although none of the harassing comments specifically referred to where Rafiq is from, the comments referred to Rafiq’s “national origin generally.”  In support of this conclusion, the appellate court pointed to several pieces of evidence, including:  Kliene’s remark “why don’t you just go back to where you came from since you believe what you believe”; Swigart’s comment, “This is America.  That’s the way things work over here.  This is not the Islamic country where you come from”; the practice of Kliene and Argabrite of referring to Rafiq as “Taliban” and calling him an “Arab.”  Based on this evidence, the Fifth Circuit concluded, Rafiq had established that he “was harassed based on his national origin.”

Free Consultation With Alachua County Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience litigating hostile work environment harassment cases, including national origin harassment cases.  If you have been the victim of an abusive work environment or have questions about being harassed because of your county of origin, please contact our office for a free consultation with our Alachua County, Florida employment discrimination attorneys.  Our employee rights law firm takes employment discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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