Tuesday, April 10, 2012

National origin harassment depends on the national origin of the harassee

Consider the following examples, both of which come from harassment cases decided in the past two weeks by the Northern District of Ohio:

  • EEOC v. Spitzer Management [pdf]: Employer denied summary judgment based on allegations that an Asian-American employee was called “slant eye” and “rice rat,” and an African-American employee was called a “jungle bunny” and a “gorilla.”
  • Burrage v. FedEx Freight [pdf]: Employer granted summary judgment based on allegations that an employee was repeatedly called “Mexican” and referred to as “cheap labor.”

How do you rationalize these two seemingly incongruous decisions? The reconciliation depends on the national origin or race of the complainant. In Spitzer, an Asian-American was complaining about harassment based on his national origin, and an African-American about harassment based on his race. In FedEx, however, the complainant was not Mexican-American, or any Hispanic descent. In reality, he was half-white/half-black. As the court in Burrage v. FedEx explained:

At best, the references to Burrage as “the Mexican” and “cheap labor,” and the use of the Spanish terms “andale” and “ariba,” represent the very unfortunate employment of offensive stereotypes of Hispanics, and can be said to arise out of a misperception that Burrage was of Hispanic descent….

Burrage seems to argue that he was harassed because of physical characteristics that made him appear to be a member of a protected class of which he was not an actual member. Claims based on perceived class membership are not legally viable under Title VII, and the Court will not expand the reach of Title VII to cover that which Congress chose not to protect.

Do not take refuge in Burrage v. FedEx and use it as an excuse to condone harassment. FedEx just as easily could have gotten dinged for ignoring an employee’s four years of complaints. Regardless of whether there is synergy between the harassment and the harassed, take the complaint seriously, investigate, and deploy appropriate corrective action if necessary. Do not hang your harassment hat on a technicality, because the court hearing your case might not be so generous.