What’s really in a name? A bit of family history, a way to distinguish ourselves and perhaps a reflection of trends in popular culture. What about legal liability?
Suppose you learn that over the last several months one of your managers, Teddy, has gone around on several occasions referring to Alonzo Ramirez, a sales representative of Hispanic descent, as “Al” to other employees in staff meetings and to potential customers during sales calls. For Teddy, whose full name is Theodore Adams, this is a way to help make Alonzo (like he has successfully done for himself) more personable to staff and customers alike. Alonzo, however, does not agree and begins to insist that Teddy refer to him by his birth name. Teddy, honestly seeing no harm in what he’s doing, tailors back a bit but, on occasion, continues to call Alonzo “Al,” particularly during sales calls.
Alonzo is convinced that Teddy’s deliberate and routine “Americanizing” of his Hispanic forename over his objections has created a racially harassing and hostile work environment. He contacts you and threatens suit unless something is done quickly. You understand that racial harassment – to be actionable under anti-discrimination laws – must not only be severe and pervasive but must also be based on one’s race or ethnicity. Assuming the conduct complained of is severe and pervasive, can Teddy’s repeated references to Alonzo as Al, which on its face are racially neutral, serve as the basis of a successful harassment/hostile work environment claim?
The short answer for some courts is yes, even if there is no evidence of discriminatory intent other than the Westernizing or Americanizing of an ethnic name. In El-Hakem v. BJY, Inc., 415 F.3d 1068 (9th Cir. 2005), the 9th Circuit Court of Appeals dealt with this very issue. In that case, the court pointed to an earlier Supreme Court ruling holding that a “distinctive physiognomy is not essential to qualify for section 1981 protection” and that the law is “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Id. at 1073; citing Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604 (1987). According to the El-Hakem court, ethnic characteristics protected by the law include more than just a person’s skin color and physical traits. El-Hakem 415 F.3d at 1073. Names in and of themselves, the court noted, “are often a proxy for race and ethnicity.” Id. As such, the court went on, there was reason to believe the defendant’s deliberate refusal to refer to plaintiff by his given ethnic name was based on his race/ethnicity. Id. at 1073-74. Further, even if there was no direct evidence that the CEO believed his actions had racial implications, the CEO’s decision to discriminate against plaintiff’s Arab name in favor of Western names provided sufficient evidence of prohibited discriminatory intent. Id. Since the conduct at issue was frequent and persistent (taking place over the course of a year) as opposed to isolated, it was severe and pervasive and supported a finding of a racially hostile work environment in violation of Section 1981. Id.
So what does this all mean for you in dealing with Alonzo’s problems with Teddy? It means you should take his concerns seriously and investigate his claims thoroughly. If the story he relays to you can be substantiated, it could very well mean that he has in fact been harassed and subjected to a hostile work environment in violation of the law. To avoid liability, you should take prompt appropriate remedial action, including, but not limited to, disciplining Teddy, reassigning him to another location or terminating his employment. The same holds true even if you conclude after your investigation that Teddy, in his mind, had noble intentions. Good intentions in this regard will likely not be enough to overcome racial or ethnic insensitivity and discriminatory preference.
As always, employers should strive to be proactive in eliminating harassment and discrimination in the workplace. As relevant here, this may require that steps be taken to ensure that employees are trained to recognize, appreciate and respect ethnic characteristics beyond those associated with one’s skin tone or physical attributes. This would not only include, as discussed above, ethnic names but could also conceivably encompass speech patterns unique to a particular ethnic group and customs and traditions of various ethnic groups.
Warren Buliox is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. He can be reached by telephone at 414-277-8500 or via email at email@example.com.