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National Origin Harassment Claims Can Be Based On Mistaken Identification

    Client Alerts
  • August 31, 2007

After the September 11, 2001 attacks, a number of South Asian Hindus and Sikhs complained of harassment by persons who assumed that they were Muslims.  Can a claim of national origin or religious harassment under Title VII be maintained when the accused harasser’s ignorance leads to mistaken assumptions about the target’s background?  In EEOC v. WC&M Enters, Inc., a new case from the Fifth Circuit Court of Appeals, the plaintiff was a Muslim from India who claimed that his co-workers began calling him "Taliban" and "Arab," and accused him of being a Muslim extremist.  He sued, alleging religious and national origin harassment and retaliation.  The District Court dismissed the national origin discrimination claim, noting that none of the alleged conduct related to the plaintiff’s actual national origin (India).

The Fifth Circuit reversed the grant of summary judgment for the employer, and remanded the case for trial.  In its decision, the Fifth Circuit stated that the concept of national origin under Title VII is wide.  It refers to acts of bias based on any physical, cultural, or linguistic characteristic.  Title VII does not require that the harassing conduct be based upon the victim’s actual national origin.  The alleged behavior here clearly attempted to harass the plaintiff based on a perceived national origin, and this is enough to maintain a claim under Title VII.  Employers cannot use the cultural ignorance of the alleged harasser to shield themselves from claims of discrimination or harassment.