“Go Back” Comments Are Unlawful in Workplace

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 national origin.”

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?

  • Set a good example. Bigoted behavior is either exorcised or encouraged by the example set by your company’s top management.
  • Train your employees.   There are many job skills that your employees do not enter the workplace knowing. Inclusiveness, professionalism, appreciation for coworkers of every nationality and race are soft skills that you cannot assume your employees know. Train them on these skills and your expectations, just like you would train them on a complicated piece of equipment.
  • Recruit diverse employees.  Your recruiting materials should show a variety of nationalities and races and promote your company’s commitment to inclusiveness. Your hiring managers should understand the company’s commitment to diversity and follow through on that commitment in the actual job offers made.
  • Promote diverse and inclusive managers.  Consider a manager’s demonstrated commitment to diversity before promoting that person. Make sure that your managers look like America—a nation proudly populated by immigrants from every part of the globe.
  • Intervene in any hate speech. While you may hear political discussions at work, you must be very diligent to quickly intercede if the discussion crosses the line to prejudice, bullying, harassment, intimidation or threats. While one hateful comment may not rise to the level of severe and pervasive behavior necessary for a successful harassment case, one comment is the canary in the coal mine. It should be shut down swiftly and effectively to prevent the  bigotry from multiplying.

It is easy in the current chaotic national climate to overlook the fact that you have a legal duty as an employer or manager to assure that the workplace remains free from the kind of vitriolic, ugly, biased remarks that seem to pass as political opinion these days. Unless you want to be defending your actions in court in a discrimination lawsuit, you need to make sure your staff knows that “Go back to where you came from” and similar racist and nationalistic statements are completely unacceptable at your company.

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