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Study Three: Manager's Use of Nicknames Unlawful Bias

Discrimination on the Basis of Race

Issue

A manager is convinced that one of our Arab employees would get along better with clients and co-workers if he dropped his Arab name and used a Western nickname. The employee refuses and has filed a discrimination lawsuit. Can’t a manager make this kind of recommendation without risking a lawsuit?

Case Background

According to Equal Employment Opportunity Commission, Title VII bars basing employment decisions on an individual’s physical, cultural, or linguistic characteristics that are associated with an ethnic group or a surname associated with an ethnic group. In this case the court had to decide whether the manager’s use of Western nicknames was racial discrimination.

A manager who refused to call an employee of Arabic heritage by his name, and instead referred to him as “Manny” or “Hank,” despite the employee’s protests, violated the federal anti-discrimination law, the U.S. Court of Appeals for the Ninth Circuit affirmed July 21 (El Hakem v. BJY Inc., 9th Cir., No. 03-35514, 7/21/05).

Upholding awards totaling $60,000 in compensatory and punitive damages to Mamdouh El-Hakem in the case against BJY Inc.’s  CEO Gregg Young under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. 1981), the Ninth Circuit rejected the contention that racial discrimination must be based on a physical trait.

“A group’s ethnic characteristics encompass more than its members’ skin color and physical traits. Names are often a proxy for race and ethnicity,” said the court, which also upheld El-Hakem’s claim that BJY Inc. owed him more than $11,000 in unpaid wages.

El-Hakem, who is of Arabic heritage, sued BJY and Young in the U.S. District Court for the District of Oregon, asserting claims under Section 1981 , Title VII, the Fair Labor Standards Act, and state wage law.  He alleged he was subjected to a racially hostile work environment, was not paid regular and overtime wages, and was fired when he complained about the latter.

El-Hakem claimed that Young repeatedly referred to him as “Manny” rather than “Mamdouh,” despite his strong objections, saying that a “Western” name would increase his chances for success and would be received better by BJY’s clientele.  Young first called him “Manny” in a marketing meeting, and continued using the reference in emails and phone calls. El-Hakem alleged that when he suggested that Young call him “Hakem” if he had trouble pronouncing “Mamdouh,” Young replied by suggesting he use the name “Hank.”

Comments

The jury found for El-Hakem on his Section 1981 hostile environment claim against Young, but for BJY on his hostile environment claim against the company.  It assessed $15,000 in compensatory damages and $15,000 in punitive damages against Young on that claim.  The jury also concluded that the company failed to pay El-Hakem $11,051.64 of regular wages.  Both sides appealed.

BJY and Young argued that Young’s use of the name “Manny” was not a racial epithet and El-Hakem needed to produce evidence of intentional discrimination based on a physical or genetic racial characteristic to succeed on that claim.  Citing U.S. Supreme Court precedent and it sown prior case law, the Ninth Circuit disagreed.

“In Saint Francis Coll. V. Al-Khazraji, 481 U.S. 604, [43 FEP Cases 1305] (1987), the Supreme Court explained that ‘a distinctive physiognomy is not essential to qualify for 1981 protection,’” the appeals court said. “Rather, the section was ‘intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.’”  Thus, while not “especially severe,” Young’s repeated reference to El-Hakem by a non-Arabic name when he knew El-Hakem objected supported a jury finding of intentional bias, the court concluded.

Source

Adapted from the Bureau of National Affairs, Inc., Bulleting to Management (Vol. 56, No. 31)