As you may know, I am a die-hard management-side attorney. Typically, I cheer on federal courts that rule in favor of employers – but there are the rare occasions where I think the court gets it unquestionably, unutterably wrong. And the U.S. Court of Appeals for the 8th Circuit’s decision in Abdel-Ghani v. Target Corp. is one of these.
In this case, the plaintiff, a Palestinian immigrant, was employed by a third party, MarketSource, to work at a mobile phone sales kiosk at a Target store. He only worked there for about two months before he was terminated. During his employment, he did not get along with the MarketSource sales manager at that store, and at one point she supposedly told him, “Go back home, go to your country.” In addition, the plaintiff alleged that Target employees (from behind shelves) called him names such as camel jockey, Muslim, Arab, terrorist, and sand nigger, and that this occurred at least ten times during the two months of his employment. Also, he overheard another employee say, “[y]ou should be rounded up in one place and nuke[d].” He was terminated, ostensibly for issues with the sales manager, Target employees and guests. He then sued MarketSource and Target under Title VII for subjecting him to a hostile work environment and national origin discrimination, among other things.
The district court tossed his claims, and the 8th Circuit affirmed the district court’s decision. But, in my opinion, the 8th Circuit’s ruling is wrong, wrong, wrong!
First, the 8th Circuit found that the ten racially based comments, although “morally repulsive,” did not create a hostile work environment because they were not “physically threatening.” And the one other threatening remark was not made directly to him. The 8th Circuit cited to one of its prior cases, Singletary v. Missouri Dept. of Corrections, for the supposed proposition that “occasional use of racial epithets had not created a hostile work environment.” But if you actually read the Singletary case, it notes that comments can create a hostile work environment if they are “physically threatening or humiliating” (emphasis added by me).
In addition, the racial comments in the Singletary case were not made directly to that plaintiff, and there were only “a few occurrences over a course of years.” That, to me, is very different than direct name calling (even if the employees were behind shelves) on ten occasions over two months. That, to me, is not an “occasional use of racial epithets.”
(The 8th Circuit also noted that the employee did not establish that the comments interfered with his ability to perform his job, which is a necessary element of a hostile work environment claim. I reserve comment on that determination, since I don’t know what evidence was or was not offered on this point.)
But it was the 8th Circuit’s statement with regard to the national origin discrimination claim that really infuriated me. The 8th Circuit found no evidence of national origin discrimination, stating that, “the one statement [the sales manager] made about how Abdel-Ghani should go back home was facially neutral as to national origin and therefore did not demonstrate animus on [her] part.” (Internal quotations omitted, emphasis added). WHAAAAAT? Just because the manager didn’t say “Go back to Palestine,” her statement is non-discriminatory? I think anyone with any common sense understands that (if she did actually say it) she fully intended to be discriminatory. She may not have known exactly what country he came from – but she still wants him to leave the U.S. and return to his country of origin. How is that not discrimination?
As a U.S. born citizen of Chinese descent, I have had exactly that same statement said to me several times over the years – and you can bet I interpreted it as being discriminatory against my Chinese background and that it was intended by the speaker to be discriminatory. Frankly, I am offended by the 8th Circuit’s hyper-technical and nonsensical interpretation of the statement! And I am disheartened that a federal appellate court could demonstrate such a flagrant and profound disregard for the reality of the situation.