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5th Circuit: Harassment Is Harassment, Misdirected or Not

   5/16/2008

10/19/07 3:45 PM

5th Circuit: Harassment Is Harassment, Misdirected or Not

By Business and Legal Reports, Inc.

A Muslim car salesman—originally from India—who was repeatedly called “Arab” and “Taliban” by his co-workers and managers was a victim of national origin and religious harassment even though his colleagues got his national origin wrong, the 5th U.S. Circuit Court of Appeals ruled.

Mohommed Rafiq, a practicing Muslim, began working at Streater-Smith Honda in Conroe, Texas, in May 2001. Beginning on Sept. 11, 2001, his colleagues and managers began addressing him as “Arab.” When the United States invaded Afghanistan later that year, they alternated “Arab” with “Taliban.” He repeatedly asked them to stop, but they refused. Testimony shows that they thought their harassment was very funny but that they also found his presence genuinely offensive.

When Rafiq questioned why a United Way meeting was mandatory, his boss sent him a disciplinary notice. And, two weeks later, he was fired for complaining to the general manager about the harassment.

Rafiq filed a formal charge of national origin and religious discrimination with the Equal Employment Opportunity Commission (EEOC), which investigated and decided to sue on his behalf. The defendant was WC&M Enterprises, which owned the dealership.

A federal district court judge dismissed the lawsuit, ruling that:

    • Rafiq had not filed with EEOC within Title VII’s 300-day limitations period.

    • Because the harassers got Rafiq’s national origin wrong, it wasn’t truly harassment.

    • The alleged harassment did not cause Rafiq to lose sales.

Rafiq appealed to the 5th Circuit, which found that the district judge had made several errors.

First, as to the timeliness issue, the court found that at least one alleged incident of harassment occurred within 300 days of Rafiq’s termination.

The court further concluded that Rafiq suffered national origin and religious harassment even though his colleagues got his national origin wrong. Also, if the harassment was severe and pervasive enough to create a hostile environment, the fact that Rafiq had not lost sales did not defeat his claim.

The court sent the case back to the trial court, concluding that the EEOC had presented sufficient evidence to create an issue of fact as to whether the harassment that Rafiq suffered altered a condition of his employment and so rose to the level of a hostile environment.

EEOC v. WC&M Enterprises , 5th Cir., No. 05-21090 (Aug. 10, 2007).

Professional Pointer: The court stressed that an employee claiming hostile environment harassment need not show economic damages, as the trial court seemed to believe. Rather, if the workplace is permeated with “discriminatory intimidation, ridicule and insult” that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.

Contributed by BLR, Inc . Read plain-English analysis on National Origin Discrimination in Texas .

Related Resource:

Religion in the Workplace Toolkit

Quick Link:

SHRM Online Workplace Law Focus Area

Editor’s Note: This article should not be construed as legal advice.

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