EMPLOYMENT DISCRIMINATION – WHAT’S IN A NAME?

Under both federal and state law, an employer is prohibited from discriminating against an employee based upon national origin or ancestry. However, a recent case shows that such discrimination does not have to be based upon the employee’s physical or genetically determined characteristics such as skin color or physical traits.

In El-Hakem v. BJY, Inc., the claim of discrimination was based upon the chief executive officer’s repeated use of a non-Arabic name instead of the employee’s Arabic name. In this case, Gregg Young, the chief executive officer of BJY, Inc. repeatedly called Mamdouh El-Hakem, who is of Arabic heritage “Manny.” Young’s explanation was that he believed that a “western” name would increase El-Hakem’s chances for success and would be more acceptable to BJY’s clientele.

El-Hakem objected to the use of the name “Manny” but despite El-Hakem’s objection, Young continued to call him “Manny” in telephone calls and e-mails. When El-Hakem proposed in an e-mail that Young use “Hakem”, his last name, if he found Mamdouh difficult to pronounce, Young suggested in his reply email that El-Hakem be called “Hank.” El Hakem objected again. Despite El-Hakem’s objections, Young persisted in calling El-Hakem “Manny” once a week in the Monday marketing meeting for approximately two months and in e-mails at least twice a month thereafter. The conduct continued for almost a year.

The court held that even though Young’s conduct was not especially severe, since these incidents were frequent and consistent, a reasonable juror could conclude that Young’s intentional conduct created a hostile work environment, racially hostile to a reasonable Arab. The court stated that names are often a proxy for race and ethnicity.

This case illustrates that employers must be vigilant in guarding against any type of discrimination, not just discrimination based on skin color and physical characteristics.

This complimentary newsletter is intended to provide general information. Because of the complexities and constant changes in the law, it is important to seek professional advice before acting on any of the matters covered herein.