Employment Law Daily Anti-Muslim, anti-Middle East rhetoric supports fired bookkeeper's Title VII, Sec. 1981 claims
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Friday, July 8, 2016

Anti-Muslim, anti-Middle East rhetoric supports fired bookkeeper's Title VII, Sec. 1981 claims

By Lorene D. Park, J.D. Reversing and remanding a grant of summary judgment against claims by a Muslim employee from Morocco that she suffered a hostile work environment and discrimination based on her race, religion, national origin, and pregnancy, the Fourth Circuit found the lower court erred in taking too narrow a view of "race-based" conduct and failed to consider the totality of circumstances, which included years of ongoing offensive remarks and conduct. The employee’s retaliation claim was also revived based largely on evidence that, only 75 minutes after she complained of discrimination, the company president emailed other employers to find her another job (Guessous v. Fairview Property Investments, LLC, July 6, 2016, Gregory, R.). Offensive remarks about Muslims and Middle Easterners. The employee, an Arab-American Muslim woman from Morocco, worked for the real estate company for six years as a bookkeeping assistant. After her first year-and-a-half, the new CFO became her supervisor and, from then on, she was allegedly mistreated on numerous occasions. When they first met, he asked where she was from and, after she replied, he said he had previously worked with "a bunch of Middle Easterners and they are a bunch of crooks, [who] will stop at nothing to screw you." From then on, the CFO allegedly made a habit of discussing Moroccans, Muslims, and Middle Easterners in offensive ways. For example, he asked, "Why do Muslims hate America?" When she said she did not hate America and that "Muslims are not terrorists," he replied: "Yeah, sure. Like my buddy says . . . Not all Muslims are terrorists, but most are." He also questioned her about suicide bombers and asked "why are the Muslims killing people?" He often conflated her identity with other Middle Eastern identities, blurring lines between race, ethnicity, national origin, and religion. Indeed, he once asked her to translate for a Farsi-speaking Persian Iranian. In 2010, the CFO asked the employee to describe Islam to him and he described Christianity to her. When she tried to emphasize similarities, he became incensed, saying "No Monica! We are not the same, you might think we are, but we are not! We do not believe in the same God!" He then allegedly stormed away. In late 2011, the CFO engaged in an extended prank where he told staff members that the employee had poisoned him after he went to the ER with abdominal pain. Disparate treatment. In addition to these incidents, the CFO allegedly singled the employee out for scrutiny, asking as much as 40 times a day what she was doing and badgering her. In late 2011, she became pregnant. She requested a three-month maternity leave, which the CFO felt was excessive. When she returned, he largely ignored her, keeping her old work duties assigned to other employees who were not Muslim or Arab and had not sought maternity leave. Termination. On December 6, 2012, the employee asked the CFO for her old duties back and confronted him about his offensive conduct. About 75 minutes later, the company president sent two emails to other employers asking if they had openings for "a wonderful girl that works for me that we simply do not have enough work for right now." Three months later, the employee was fired. The employer averred that the decision was made by the CFO in "late November or early December 2012," which was at or around the time the employee confronted him. Lawsuit. The employee sued under Section 1981 and Title VII, alleging discrimination based on race, religion, national origin, and pregnancy, as well as a hostile work environment and retaliation. The court granted summary judgment for the employer and the employee appealed. Retaliation claim revived. As to the retaliation claim, the sole question on appeal was whether the employee raised a triable question on whether the purported reason for her termination—insufficient work for her position—was pretextual. While the district court had found it dispositive that her position remained unfilled and her duties were given to other staff, the Fourth Circuit disagreed. Just because the employer could operate without the employee did not mean that it would have done so absent the protected activity, explained the appeals court. While the employee had not shown that there was so much work to be done that her position was required, a reasonable jury could easily conclude that the termination decision was made only 75 minutes after her complaint about discrimination and so was motivated by the complaint. Summary judgment was therefore inappropriate on this claim. Discrimination claims too. The Fourth Circuit reviewed the discrimination claims together, because the district court had granted summary judgment on them for effectively the same reasons. Because the employer claimed it terminated the employee due to lack of work, the appeals court likened this case to a reduction-in-force and adapted her prima facie requirements accordingly. Given undisputed evidence that her duties were absorbed by non-Arab, non-Muslim employees, she established a prima facie case of discriminatory discharge. And as with the retaliation claim, she raised a triable question on pretext. While the employer claimed it had considered eliminating her position for years, there was no evidence documenting that assertion. Moreover, the timing of the company president’s email so soon after her discrimination complaint, as well as the litany of allegations of discriminatory comments and conduct suggested the termination was a continuation of past discrimination. Hostile work environment claims. The employee also claimed she was subjected to a hostile work environment based on race, religion, national origin, and pregnancy. Addressing these claims, the appeals court first rejected the lower court’s conclusion that the Title VII claim was time-barred. To the contrary, some of the acts about which she complained (withdrawal of assignments and discharge) occurred less than 300 days before she filed her EEOC charge and the other acts could be considered as part of a "series of separate acts that collectively" created a hostile environment. On the merits, the appeals court found that the district court erred in taking an "overly cramped view of what constitutes race-based conduct" and in failing to consider the totality of the circumstances. Indeed, it was unclear how the lower court found that the term "camel people" was racially derogatory but all of the CFO’s other statements, while distasteful, were merely references to and questions about Islam and Moroccan culture. To the contrary, found the appeals court, the comments were more than distasteful and were either clearly or conceivably racial. It pointed to the CFO’s comment that Middle Easterners are "crooks;" his remarks about religion and terrorists; and his expecting the employee to be able to interpret for a Persian Iranian, among other incidents. Moreover, the appeals court found triable questions on whether the conduct was severe or pervasive, considering the number of ongoing remarks and incidents.

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