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Legislative Update

November 2005

Amy L. Doherty, Esq.
FISHER & PHILLIPS LLP
4225 Executive Square, Suite 950
La Jolla, California 92037
phone: (858) 597-9600
fax: (858) 597-9601
www.laborlawyers.com

Use of American Nicknames Can Support Racial Harassment Claim Under Federal Discrimination Laws - El-Hakem v. BJY, Inc., 415 F.3d 1068 (9th Cir. 2005)

The Basics

The Ninth Circuit upheld a $60,000 race discrimination award to an employee based on Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) where the CEO of the employer repeatedly used American nicknames "Manny" and "Hank" to refer to an Arab employee despite his protests.

Background Facts and Legal Reasoning

Mamdouh El-Hakem was a former employee of Arabic heritage who worked for BJY, Inc. After he was fired, El-Hakem filed a lawsuit against his former employer claiming, among other things, that he was subject to unlawful racial discrimination. The basis for El-Hakem's claims was that the CEO of the company repeatedly referred to him as "Manny" rather than by his given name, Mamdouh. El-Hakem strenuously objected to the CEO's use of "Manny," but to no avail. The CEO insisted on referring to El-Hakem as "Manny," explaining that he thought a "Western" name would increase El-Hakem's success within the company and with customers. The same CEO suggested that El-Hakem go by "Hank."

Based on evidence presented that the CEO repeatedly referred to El-Hakem as "Manny" or "Hank," the jury decided in favor of El-Hakem. The Ninth Circuit upheld the result and reasoned that "[t]he record is clear that [the CEO] intended to discriminate against El-Hakem's Arabic name in favor of a non-Arabic name" and that this was sufficient to show the required discriminatory intent.

Significance

Although the El-Hakem case was decided under federal law and not California's Fair Employment and Housing Act, it is likely that a California court would reach the same conclusion if confronted with similar facts. Regardless, the case serves as a valuable lesson to employers about the wisdom of maintaining zero tolerance policies for harassment. It also should help employers understand that comments or conduct that are not obviously discriminatory can still support a claim of discrimination or harassment.

Uninvolved Employees Can Sue Over Affairs Between Supervisor and Co-workers - Miller v. Dept. of Corrections, 36 Cal. 4th 446 (2005)

The Basics

In Miller, the California Supreme Court held that employees who are not involved in a sexual affair between a supervisor and co-workers but who are aware of the relationship may sue for discrimination and harassment based on that supervisor's favoritism towards employees involved in sexual relationships with him or her.

Background Facts

This case involved two former employees at the Valley State Prison for Women. While the women were employed, there were multiple women having sexual affairs with the chief deputy warden of the facility. These same women repeatedly received favorable treatment in promotions, pay raises, reporting structure and special assignments from the chief deputy warden and often at the expense of other employees. In addition to it being common knowledge in the workplace about these affairs, other conduct occurred, including emotional scenes and squabbling between the women having affairs with the chief deputy warden and the chief deputy warden fondling the women he was having affairs with at work-related social gatherings.

The two women then sued, claiming that the work environment at the facility constituted sexual harassment and discrimination. One of the women won on summary judgment. The other lost and both the company and the employee appealed.

Legal Conclusions

The Court held that widespread sexual favoritism in the workplace may create an actionable hostile work environment sufficient to establish a claim for sexual harassment:

[W]e conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as 'sexual playthings' or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisor or the management.

Significance

While the Miller case does not label all claims for sexual harassment and discrimination claims based on sexual affairs in the workplace actionable, it does clearly provide that certain types of sexual relationships in the workplace may lead to discrimination and harassment claims. To avoid these types of claims, employers must be careful to monitor and regulate sexual relationships in the workplace between any supervisors and subordinates either through non-fraternization policies or otherwise.

This column is intended to provide general information and does not constitute legal advice. Fisher & Phillips LLP is a national law firm representing employers exclusively in labor and employment matters. Amy Doherty is an associate in the San Diego office of Fisher & Phillips LLP and can be reached at (858) 597-9600.

ARCHIVED ARTICLES & PRESENTATIONS

PUT DOWN THAT CELL PHONE! NEW CALIFORNIA LAW WILL SOON BE IN PLACE
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GETTING TO KNOW GINA - THE GENETIC INFORMATION NONDISCRIMINATION ACT
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THE SCOOP FROM SACRAMENTO: PROPOSED EMPLOYMENT LEGISLATION
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Supreme Court Issues Non-Decision on “Me Too” Evidence
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UNDERSTANDING THE “TOOL RATE”
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UPDATE ON THE CALIFORNIA LEGISLATURE: NEW LAWS FOR 2008
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THE COUNTDOWN ON 2007 PROPOSED EMPLOYMENT LEGISLATION
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FAMILY RESPONSIBILITY DISCRIMINATION
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California Supreme Court Ruling Could Quadruple Potential Damages
June 2007. By Amy Lessa
The Scoop From Sacramento: Proposed Employment Legislation
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United States Citizenship and Immigration Open Enrollment for Work Visa
April 2007. By Amy Lessa