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

EEOC Issues Guidance Interpreting National Origin Discrimination

Q:  What does it mean to discriminate against someone based on their national origin?

A:  Title VII prohibits employers from acting in a way that would have the purpose or effect or discriminating against an employee because of his or her national origin.

But what does the term “discrimination based on national origin” really mean?

The Equal Employment Opportunity Commission (“EEOC”) recently issued an Enforcement Guidance on this subject. Although the EEOC’s position at times is broader than controlling case law, the Enforcement Guidance is helpful because it offers insight into how the EEOC will investigate claims of alleged national origin discrimination in the future.  It is significant that 11 percent of EEOC Charges filed in 2015 contained an allegation of national origin discrimination.

According to the EEOC, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular ethnic group. National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated with (or, according to the EEOC, perceived to be associated with) a particular religion or race.

Title VII prohibits an employer from using certain recruitment practices, such as sending job postings only to ethnically or racially homogenous areas or audiences, or requesting that an employment agency refer only applicants of a particular national origin group. Importantly, employers may not rely on the discriminatory preferences of coworkers or customers as the basis for an adverse employment action in violation of Title VII.  Thus, for example, a retail store may not reject an applicant for not fitting its “all American image.”

Social Security Numbers

The EEOC also addressed an issue that sometimes trips up employers. According to the EEOC, having a policy or practice of screening out candidates who lack a Social Security number implicates Title VII if it disproportionately screens out work-authorized individuals of a certain national origin, such as newly arrived immigrants or new lawful permanent residents, and thus has a disparate impact based on national origin. The EEOC has clarified that newly-hired employees should be allowed to work if they can show that they have applied for but not yet received a Social Security number.

Accents

Under Title VII, an employer may refuse to hire (or fire) an individual if his or her accent interferes materially with job performance. To meet this standard, however, an employer must be able to provide evidence showing that: (1) effective English communication is required to perform job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English. Likewise, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed.

According to the EEOC, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job. Evidence of an accent materially interfering with job duties may include documented workplace mistakes attributable to difficulty understanding the individual, assessments from several credible sources who are familiar with the individual and the job, or specific substandard job performance that is linked to failures in spoken communication.

Hostile Work Environment Claims

The EEOC’s Enforcement Guidance also issued an important reminder to employers that harassment based on an employee’s national origin could give rise to liability for a hostile work environment. A hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent.  None of this behavior should be tolerated in the workplace.

Promising Practices

The EEOC lists several “promising practices” for employers to consider to avoid liability for national origin discrimination:

  • Use a variety of recruitment methods to attract as diverse a pool of job seekers as possible;
  • Identify your Company as an equal opportunity employer;
  • Implement clearly-defined criteria for evaluating performance;
  • Distribute a policy prohibiting harassment based on national origin and train employees regarding their rights and obligations under the policy.

Tracey E. Diamond