Bias charge stands regardless of worker's national origin

NEW ORLEANS—A plaintiff can pursue a discrimination claim based on religion and national origin even if the harassers are wrong about the victim's actual country of origin and even if his work performance has not apparently suffered, a federal appeals court has ruled.

The Aug. 10 opinion by the 5th U.S. Circuit Court of Appeals in Equal Employment Opportunity Commission vs. WC&M Enterprises Inc. overturns a lower court decision that had dismissed the case.

According to the ruling, Mohommed Rafiq, who was born in India and is a practicing Muslim, began to have problems at his job as a car salesman at Streater-Smith Honda Inc., a Conroe, Texas-based dealership owned by WC&M Enterprises, following the Sept. 11, 2001, terrorist attacks.

Co-workers and supervisors repeatedly called him "Taliban" and mocked his religious dietary restrictions and his need to pray during the workday. They also referred to him as an Arab, even though he told them he was from India.

In October 2002 when Mr. Rafiq questioned mandatory attendance at a United Way meeting, his direct supervisor issued a written warning stating Mr. Rafiq "was acting like a Muslim extremist" and that he could not work with him because of his "militant stance."

In addition, a finance manager would bang on the partition separating Mr. Rafiq's office from the sales floor every time he walked by and say, "Got you," to startle Mr. Rafiq, who was fired two days after he told the manager not to do it.

Mr. Rafiq filed a discrimination charge with the U.S. Equal Employment Opportunity Commission, which filed suit charging the dealership with subjecting him to a hostile work environment on the basis of his religion and national origin in violation of Title VII of the Civil Rights Act of 1964.

In dismissing the case, the U.S. District Court for the Southern District of Texas said the EEOC could not bring a claim because none of the harassing comments specifically referred to the fact that Mr. Rafiq was from India.

The appeals court said, however, that EEOC guidelines broadly define discrimination to include discriminatory acts undertaken "because an individual has the physical, cultural or linguistic characteristics of a national origin group."

"Nothing in the guidelines requires that the discrimination be based on the victim's actual national origin," the court ruled.

The appeals court said the lower court also incorrectly concluded the hostile work environment claim was invalid because the EEOC had not shown Mr. Rafiq lost sales as a result of the alleged harassment he suffered.

"To determine whether the victim's work environment was objectively offensive, courts consider the totality of the circumstances," the appeals court said. "No single factor is determinative. In short, a showing that the employee's job performance suffered is simply a factor to be considered, not a prerequisite."

"Although no single incident of harassment is likely sufficient to establish severe or pervasive harassment, when considered together and viewed in the light most favorable to the EEOC, the evidence shows a long-term pattern of ridicule sufficient to establish a claim under Title VII," said the court, which remanded the case to the lower court for further proceedings.

Barry C. Barnett, an attorney with Susman Godfrey L.L.P. in Dallas, said the decision tells employers that "a series of taunting events over a period of time, particularly if they include managers, will be sufficiently offensive to a person that you become liable," even if a salesman, for instance, does not necessarily lose sales because of it.

"It's not just that the employee can't do his or her job as well anymore. It's also the pattern of behavior is so offensive that nobody should be expected to handle that at work," said Mr. Barnett.

Michael W. Fox, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas, said international tensions will be reflected in the workplace "and employers need to be sensitive to that dynamic."

People who make such comments may consider them to be "just fun and games," but they "always sound worse when they come back in the context of a lawsuit," said Mr. Fox.

Equal Employment Opportunity Commission, plaintiff-appellant, vs. WC&M Enterprises Inc., doing business as Streater-Smith Honda, defendant-appellee, 5th U.S. Circuit Court of Appeals, No. 05-21090; Aug. 10, 2007.