Telling a person in America to “go back to where you came
from” has been considered racist and bigoted for decades in this country
founded and built by immigrants, and if you as an employer allow this sentiment
to ever be expressed at your business, you can expect a racial or national
origin discrimination lawsuit to quickly follow.
Regardless of how the current
occupant of the White House talks, the Equal Employment Opportunity
Commission (“EEOC”), which actually investigates and prosecutes discrimination/harassment
claims, has long told employers:
Ethnic slurs and other verbal or physical conduct of nationality are illegal if they are severe or pervasive and created an intimidating, hostile or offensive working environment, interfere with work performance, or negatively affect job opportunities. Examples of potentially unlawful conduct includes 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.
Facts About Employment
Rights of Immigrants Under Federal Anti-Discrimination Laws, U.S. Equal
Employment Opportunity Commission.
The EEOC didn’t come up with this guidance on its own. It
followed dozens of court opinions that examined cases in which an employee was
harassed with statements like, “Go back to Africa” addressed to a black worker
or “Go back to where you came from” addressed to an employee who appeared to the
bigot to have been born somewhere other than America.
For example, our own conservative Fifth Circuit Court of
Appeals ruled in a summary judgment appeal in EEOC
v. WC&M Enterprises, Inc., 496 F.3d 396 (5th Cir. 2007) that
an employee born in India (“Rafiq”), who happened to be Muslim, was entitled to
prove he was harassed in a severe and pervasive way when his coworkers and
managers said, “Why don’t you just go back where you came from”, started
calling him “Taliban,” after September 11, and repeatedly referred to him as an
Arab (he was Indian).
Rafiq was told, “This is America. That’s the way things work
over here. This is not the Islamic country where you came from.” Rafiq’s supervisor
even put in a written warning that Rafiq was “acting like a Muslim extremist”
and said he could no longer work with Rafiq because of his “militant stance”.
The Fifth Circuit found that a jury could “easily infer that [the coworkers’
and supervisor’s] actions were taken on account of Rafiq’s religion and
One way the company tried to defend itself was by saying
that it couldn’t have discriminated against Rafiq on the basis of national
origin, since the workers were apparently too clueless to understand the
difference between India and Saudi Arabia or whichever other Muslim country
they mistakenly believed Rafiq was from. “The fact that the coworker ignorantly
used the wrong derogatory ethnic remark toward the plaintiff is
inconsequential.” LaRocca v. Precision Motorcars, Inc., 45 F. Supp.2d 762,
770 (D. Neb. 1999). The Fifth Circuit agreed and concluded in Rafiq’s case, “It
is enough to show that the complainant was treated differently because of his
or her foreign accent, appearance or physical characteristics.”
As the Sixth Circuit Court of Appeals has said, telling someone
to “go back to where you came from” is “insensitive, ignorant and bigoted.” Williams
v. CSX Transportation Co. Inc., 643 F.3d 502 (6th Cir. 2011). It
is your responsibility as an employer to make sure that words to that effect
aren’t uttered in your workplace, particularly, but not exclusively, if they
are said by anyone in management. “The employer is presumed absolutely liable
where harassment is perpetrated by the victim’s supervisor.” Nader v. The Brunalli
Construction Co., 2009 WL 724597 (D. Conn. 2002).
So how do you as an employer assure that this kind of
discriminatory and harassing talk isn’t heard in your workplace?
Continue reading “Go Back” Comments Are Unlawful in Workplace