Many of you were justifiably horrified by the case discussed in our February 4th post, and expressed disbelief that the case discussed did not receive greater publicity. 

It dealt with a jury’s punitive damage award to an African-American employee who was subjected to racial slurs such as the N-word, and displays of a noose in the workplace.  We commented that even as jaded as we are, since we tend to write about each such case, we nonetheless “are still shocked when egregious racial claims of this type are filed.”


Consider now a case out of Texas of a 51-year-old Muslim-American of Palestinian ethnic origin, who claimed that three to four times per week his boss called him “towelhead,” “raghead,” “rock thrower,” “sand nigger,” “terrorist,” “fucking Palestinian,” “shithead” or “fucking Muslim.” He complained to his finance director and was fired, and then sued alleging, among other things, a hostile work environment based on religion and national origin.



The company’s main contentions on its summary judgment motion were that (1) these comments were not of a frequent and continuous nature, and so the alleged harassment was not severe or pervasive enough to affect a term, condition, or privilege of his employment; and (2) since the same person who fired him had hired him, the company was entitled to interpose a “same actor inference” —  that is, a strong inference that discrimination was not a determining factor for any adverse action taken.  



The Court, however, found that the ethnic and religious comments were severe and frequent, and that the employee presented testimony that because of it the work place felt "like a ‘war zone.’”  Using “the totality of the circumstances test,” the Court held that the employee “has presented sufficient evidence to raise a genuine dispute of material fact as to whether the harassment that he suffered was sufficiently severe or pervasive as to create a hostile work environment.  While none of the incidents alone is likely enough to establish severe or pervasive harassment, when considered together and viewed in the light most favorable to [the employee], the evidence demonstrates a frequent and continuous pattern of harassment over a period of six months that is sufficient for a reasonable jury to conclude that [he] established a claim of discrimination under Title VII based on religion and national origin.”



The Court also held that the “same actor inference” did not apply in hostile work environment cases, but instead was used during the pretext stage of the McDonnell Douglas burden-shifting analysis.



Anyone else out there still "shocked" that such cases still exist in the US?