Employment Law Daily Nepotism favoring ethnic family members is not national origin discrimination
Wednesday, March 23, 2016

Nepotism favoring ethnic family members is not national origin discrimination

By Dave Strausfeld, J.D. Because nepotism is not unlawful under Title VII, a nursing home manager’s hiring of his relatives of Albanian or Montenegrin descent did not create a hostile work environment for a maintenance employee who was Guyanese of Indian descent, held a federal district court in New York, granting summary judgment for the nursing home on his discrimination claims (Hiralall v. Sentosacare LLC, March 18, 2016, Daniels, G.). “Demoted.” The employee worked in the nursing home’s maintenance department as a painter. His tenure was uneventful until the environmental services manager transferred him from maintenance to housekeeping, explaining that the painter position was no longer needed. Around the same time, the manager hired a new employee for the maintenance department: his nephew, who soon replaced him as manager. The employee did not get along well with the new manager (the nephew), and eventually filed a formal grievance with his union detailing his “demotion” to housekeeping and general mistreatment. Ultimately, he was terminated for insubordination. No evidence of HWE. The employee offered one “smoking gun” incident, in which the manager allegedly yelled at him, “You people are only here to make trouble,” after accusing him of tampering with the posted work schedule. But what the manager meant by “you people” was unclear. And even assuming he was referring to Guyanese individuals of Indian descent, this was far from the “steady barrage of opprobrious racial comments” or extremely serious isolated incidents that are actionable under Title VII as a hostile work environment, the court explained. Nepotism not unlawful. According to the employee, the manager also created a hostile work environment by hiring his relatives, all of Albanian or Montenegrin descent, but this was merely nepotism. “[S]howing a preference for one’s family members, to the detriment of several other races or nationalities, does not amount to disparate treatment against a protected class,” the court stated. In short, even if nepotism is pernicious, it is not a form of discrimination under Title VII and does not support a hostile work environment claim. No continuing violation. Some of the incidents alleged to have created a hostile work environment ran into a timeliness bar. To be able to sue over incidents that occurred more than 300 days before he filed his EEOC charge, he needed to show they were related to timely incidents, and formed a continuing violation. But the gap of nearly a year and a half between the last untimely incident and the first timely incident was too lengthy to find they were all part of one continuing violation. Consequently, the incidents that occurred more than 300 days before he filed his EEOC charge were not part of his claim. Retaliation claim failed too. The employee did not argue that his termination for insubordination was discriminatory, only that it was retaliation for complaining to the EEOC. But as he essentially admitted, he had brought a recording device to a meeting with the manager and insisted on using it even after being warned three times that he would be terminated for insubordination if he did not turn off the device. Under the facts here, there was no evidence the termination decision was pretextual. Federal Nursing Home Reforms Act inapplicable. Finally, to the extent that the employee asserted a claim under the Federal Nursing Home Reforms Act (FNHRA), this claim was dismissed because FNHRA does not afford litigants a private cause of action. The nursing home was not a state actor, and the statute benefits residents, not employees.

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