Wednesday, May 10, 2017

The 9th nominee for the “worst employer of 2017” is … the harassment ignorer


I was going to blog this morning about President Trump’s firing of FBI Director James Comey, and how, if you’re a CEO, and your company is investigating you for some misconduct (or even worse, potential illegal activity) related to your job, it’s bigly not good to fire the person leading the investigation, no matter the excuse you trump up.

Instead, however, today’s nominees are Target Corporation and MarketSource, (which operates mobile-phone kiosks in Target stores). Why do they make my list? Take a look at Abdel-Ghani v. Target Corp. (8th Cir. 5/5/17) [pdf].

Abdel-Ghani, a Palestinian immigrant, worked for MarketSource at a Target Mobile kiosk selling mobile phones. During the two months of his employment, he was subjected to repeated harassment about his ethnicity:
Abdel-Ghani alleged that some of the Target employees called him names like camel jockey, Muslim, Arab, terrorist, and sand nigger, often from behind shelves in the employee backroom. He claims he heard such comments at least ten times during his two months working at the Bloomington Target. He also claimed to have overheard another employee say “[y]ou should be rounded up in one place and nuke[d].” 
Abdel-Ghani alleges that he reported the harassment to management of both companies. Instead of investigating the harassment or implementing any corrective action, however, Abdel-Ghani was suspended and fired based on complaints about his interactions with co-workers and customers.

The appellate court affirmed the dismissal of his harassment complaint because the none of “morally repulsive” comments to which he had been subjected were accompanied by threats of violence.
Here, Abdel-Ghani has not alleged facts which show he was subjected to a hostile work environment by Target or MarketSource. Some of the approximately ten comments Abdel-Ghani heard in Target’s backroom may have been “morally repulsive,” but they were not physically threatening. The one physically threatening comment he overheard (referencing being nuked) was not said directly to him. Furthermore, Abdel-Ghani has not shown that any of these comments interfered with his work performance. We conclude that the record does not show he was subjected to a hostile work environment. 
Since when does Title VII require that a hostile work environment be accompanied by threats of violence? (Hint: it doesn’t). The standard for a hostile work environment is that the offensive conduct must be so severe or pervasive so as to alter the employee’s terms or conditions of employment. This employee was subjected to approximately ten hateful and disgusting comments about his ethnicity during the lone two months of his employment. To my management-side sensitives, that meets the pervasiveness standard. Indeed, I could make a good argument that even one “sand nigger” could meet the severity standard. Indeed, as one federal appellate court observed, “Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Regardless, however, you can’t ignore the harassment and do nothing (other than fire the victim).

Congratulations Target and MarketSource for your nomination. If you condone the use of ethnic (or, for that matter, racial, sexual or otherwise) epithets, no matter how many are uttered, you might be the worst employer of 2017.

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