When Personal Opinions Become Actionable Harassment

It's an election year, so most employees will be talking about politics at some point. In addition, recent world events have placed a focus on deadly attacks by terror groups. Sometimes, however, an employee's expression of his or her "views" on the news and certain groups of people can cross over into actionable harassment. A recent example comes to us from the Fourth Circuit Court of Appeals, Guessous v. Fairview Property Investments, LLC, --- F.3d ---- (4^th Cir. 2016), 129 Fair Empl.Prac.Cas. (BNA) 475. In that case, the Fourth Circuit Court of Appeals reversed the District Court and found, among other things, that a supervisor's treatment of a female employee could be considered harassment based on race, allowing the case to proceed to a jury trial. Among the comments by the supervisor to the plaintiff, who was an Arab-American Muslim woman from Morocco, were the following:

• "Yeah, sure. Like my buddy says ... not all Muslims are terrorists, but most are."


• "Middle Easterners are a bunch of crooks, who will stop at nothing to screw you."


• Muslims and Christians do not worship "the same God."


• The supervisor consistently conflated the plaintiff's identity as a Moroccan Muslim with other Middle Eastern identities, blurring the lines between race, ethnicity, national origin, and religion. For example, the plaintiff was called to act as a translator for a person who was a Farsi-speaking Persian Iranian. When the plaintiff told her supervisor that she did not speak Farsi, he replied, " 'So you don't speak Iranian? Shouldn't there be some secret [ ] language that you all understand?' "


• The plaintiff wished her supervisor a happy birthday, which happens to fall on September 11th. The supervisor responded to his sole Muslim Arab employee's well wishes by saying that each year on his birthday he was "reminded of the terrorist attacks by the Muslims" and then walking out of his office.

Practice Tip:


Although employees may hear anti-Muslim or anti-Middle Eastern rhetoric voiced by politicians or media figures, that does not make those types of statements acceptable in the workplace. To the contrary, as a general rule, any comments that unfairly stereotype races, genders, or ethnicities or other protected groups should not be tolerated in the workplace, especially when they are made by supervisors. Such comments can be used as evidence of discriminatory animus against the company. Unfortunately, employees may hear or see these types of comments in the media or on social media and repeat what they have heard. Therefore, especially during this contentious election season, employers need to be especially vigilant about comments that may violate their policy against harassment in the workplace and take action when necessary.