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The 2nd U.S. Circuit Court of Appeals revived a black Egyptian-Muslim woman's claim that two supervisors at Astoria Bank created a hostile work environment through racial and anti-Muslim comments, vacating the trial court's March 2016 grant of summary judgment and holding that there was enough evidence for a reasonable jury to rule in her favor.
Sherin Ahmed was hired as a quality control analyst at Astoria Bank in September 2013 but was terminated at the end of her 90-day probationary period for tardiness and for carelessness while checking important documents. Ahmed, a naturalized U.S. citizen who wears a hijab, believed she was discriminated against and filed suit claiming discrimination based on race, national origin and religion (including hostile work environment) and retaliation by discharge.
After disclosing only two incidents at deposition, Ahmed offered evidence that a senior supervisor constantly told her to take the "rag" off her head and advised her that a hijab was not appropriate for the work environment. Ahmed also said that during her interview on Sept. 11, 2013, the senior supervisor commented that Ahmed and two other employees were "suspicious" and that he was grateful he was on "the other side of the building in case you guys do anything."
Further, Ahmed alleged that another supervisor "continually used gestures to communicate," suggesting that Ahmed didn't understand English, and that the supervisor stated she didn't understand "why Arabic women cover their heads."
The trial court granted summary judgment in favor of Astoria on all counts. With respect to the hostile work environment claim in particular, the court concluded that the "stray comments from two specific individuals over a three-month period ... are far from the steady barrage of opprobrious racial comments that is required ... to rise to the level of sufficiently severe to create a hostile work environment." Ahmed appealed only the dismissal of her hostile work environment claim.
[SHRM members-only toolkit: Managing Equal Employment Opportunity]
The three-member panel of the 2nd Circuit succinctly held that the supervisors' comments and conduct, when taken together, could lead a reasonable jury to find that Ahmed was indeed subjected to discriminatory harassment that was sufficiently severe or pervasive to create a hostile work environment.
Ahmed v. Astoria Bank, 2nd Cir., No. 16-1389-cv (May 9, 2017).
Professional Pointer: This case provides two important takeaways for employers. First, as religious and cultural diversity within the workplace continues to expand, employers must maintain and enforce clear policies regarding racial and religious intolerance, and perhaps offer cultural sensitivity training or education. Second, there is no magic number of comments to reach the threshold of what is considered sufficiently severe or pervasive to create a hostile work environment—just a few remarks within a three-month period, according to the 2nd Circuit, can suffice. Accordingly, employers should remain vigilant in addressing racially or religiously charged language.
Rob Dare is an attorney with Pilchak & Cohen P.C., the Worklaw® Network member firm in Auburn Hills, Mich.
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