Comments on Social Media about an Employee’s National Origin Could Lead to Allegations of Discrimination

Q: Over the summer, I saw that President Trump tweeted that four minority Democrat congresswomen should “go back” to where they came from. What Human Resources lessons can be learned from the President’s tweet?

A: In July 2019, President Trump tweeted that certain Democrat congresswomen “who originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world” should “go back” to the “totally broken and crime infested places from which they came.” The President affirmed that he was referring to Representatives Ayanna Pressley (D-MA), Ilhan Omar (D-MN), Alexandria Ocasio-Cortez (D-NY), and Rashida Tlaib (D-MI).  All are U.S. citizens, all are minorities, and only one was actually born outside the United States.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination and harassment on the basis of race, color, sex, religion, and national origin. As many commentators have noted, U.S. Equal Employment Opportunity Commission (EEOC) guidance specifically provides that the following types of conduct are examples of harassment based on national origin: “insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, ‘go back to where you came from,’ whether made by supervisors or by co-workers.”  If particularly severe or pervasive, such conduct could rise to the level of unlawful harassment. However, a company does not need to wait for an employee’s conduct to become illegal before taking action.

While we do not take a position on the politics of the current administration, the President’s tweets, if made by a manager or coworker, could be considered a Title VII violation or a violation of a company’s nondiscrimination and anti-harassment policies. In fact, there are numerous cases where companies faced significant liability as a result of employee comments similar to those made by the President.  In just one example from 2012, a California medical center paid nearly $1 million to settle a national origin discrimination suit where Filipino-American hospital workers alleged that they were told to “go back to the Philippines.” See also Cerezo-Martin v. Agroman, 213 F. Supp. 3d 318 (D.P.R. 2016) (denying defendant’s summary judgment motion as to plaintiff’s hostile environment claim where there was evidence that plaintiff was repeatedly told “to ‘go back to [his] country’ and to stop taking jobs away from Puerto Ricans.”); Brewster v. City of Poughkeepsie, 447 F. Supp. 2d 342 (S.D.N.Y. 2006) (trial court refusing to overturn jury verdict for plaintiff on a national-origin based hostile environment claim where there was testimony that defendant’s employees said to plaintiff “Speak English. Go back to your own country if you want to speak Spanish. You’re in our country.”

In addition, the fact that discriminatory comments may be made outside of the workplace on social media neither insulates an employer from liability nor protects an employee who may have violated company policies.

But wait—what about free speech?

Despite what many employees may think, in nearly all instances, the First Amendment does not apply in the private sector workplace and workers are afforded no protection for their speech—especially speech that is harassing or discriminatory.

If an employee or supervisor in your workplace makes comments similar to those made by the President, your Human Resources Department should conduct a thorough investigation and then take prompt remedial action—up to and including termination—if it is determined that company policies were violated. Failure to act could result in your company facing an EEOC charge or lawsuit for national origin-based discrimination or harassment. One of the best ways to prevent discriminatory comments and behavior from occurring in the workplace is through preparation and training. The attorneys in Pepper Hamilton’s Labor and Employment Practice Group are here to help you update non-discrimination and anti-harassment policies, provide training to employees and managers, assist with investigations, and provide advice when employees make insensitive remarks.

Lee Tankle

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