By Monica Sanchez
A recent Ninth Circuit decision makes it clear that racial discrimination can occur, even under what appears to be innocent behavior. The Court, in El-Hakem v. BJY, Inc., 415 F.3d 1068 (2005), ruled that the use of a non-offensive racially motivated nickname constitutes racial discrimination.
Employee, Mamdouh El-Hakem, who is of Arabic heritage, sued his former employer BJY, Inc. and the Chief Executive Officer (CEO), for discrimination. El-Hakem's racial discrimination claims were based on the CEO's repeated references to El-Hakem as "Manny." The CEO expressed the view that a "Western name would increase El-Hakem's chances for success and would be more acceptable to BJY's clientele."
The Court reasoned, that although the CEO's conduct may not have been especially severe, the evidence showed that the frequency and pervasiveness of the conduct created a hostile work environment for El-Hakem. The CEO continued to use the name "Manny" after El-Hakem first objected at a marketing meeting. Approximately a month later, El-Hakem proposed to the CEO that he use his last name, if he found his first name, Mamdouh, difficult to pronounce. However, rather than call him Hakem, the CEO suggested, in his reply e-mail, to call him "Hank." Once again, El-Hakem objected. El-Hakem was called "Manny" for almost a year. It was this conduct that lead the Court to find, that the incidents were frequent and consistent, rather than isolated, thus creating a work environment that was hostile.
IMPACT ON EMPLOYERS
The Ninth Circuit disagreed with the defendant's contention that actionable race discrimination must be based on a physical or genetically determined characteristic such as skin color. The Court held that defendant's violated 42 U.S.C. Section 1981, which is "intended to protect from discrimination [of] identifiable classes of persons who are subject to intentional discrimination solely because of their ancestry or ethnic characteristics." (citing, Saint Francis Coll. V. Al-Khazraji, 481 U.S. 604 (1987)).
It is important that employers educate their supervisors and managers to recognize conduct that creates a hostile work environment. The Court makes it very clear that, "a group's ethnic characteristics encompass more than it's member's skin color or physical traits. Names are often a proxy for race and ethnicity." Because the CEO was acting within the scope of his employment, when the relevant incidents occurred, BJY, Inc. was liable for their CEO's actions as a matter of law.
WHAT EMPLOYERS NEED TO DO
The ruling in El-Hakem, is one of the latest, which reminds employers of the wide range of behavior that will constitute a hostile work environment and create liability for employers who allow harassment in their workplace.
It is recommended that Employers:
1. Train and educate all their supervisors and managers to recognize and prevent discrimination in the workplace, including the type of conduct that can create a hostile work environment.
2. Train employees to respect the differences in cultures and ethnic characteristics in order to prevent discrimination.
3. Review their anti-harassment policies located in their employee handbooks and any office memorandum, in order to ensure that the policies are current and up to date.
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Monica Sanchez is an employment associate at Kring & Chung, LLP's Irvine and San Diego offices. You can reach Ms. Sanchez at 949-467-9164.** The information contained herein is for informational purposes only and should not be relied upon in reaching a conclusion in a particular area. The legal principles discussed herein were accurate at the time this article was authored but are subject to change with time. Applicability of these same legal principles may differ substantially in individual situations. Please consult an attorney before making a decision in a particular area using only the information provided in this article.
