An employer created a hostile work environment race discrimination claim when it insisted on calling an employee of Arab heritage by a nickname that sounded more “Western” than his given name.

The employee’s name was Mamdouh El-Hakem. The CEO referred to him as “Manny” because he claimed a “more Western” name would increase the employee’s chances for success and be more acceptable to the employer’s clients. The employee strenuously objected and asked that the CEO use his last name, Hakem, if he found the first name too hard to pronounce. The CEO responded by proposing the use of “Hank” instead. When the employee objected again, the CEO resumed calling him Manny. This conduct continued for almost a year.

The employee eventually sued both the CEO and the employer for hostile work environment based on race under the Civil Rights Act of 1991 (§1981). The jury returned a verdict in favor of the employee against the CEO (and later the employer as well) on the basis that the conduct created a hostile work environment.

The defendants appealed, arguing they did not intentionally discriminate on the basis of race because the name “Manny” is not a racial epithet and because the behavior was not severe or pervasive enough to constitute a hostile work environment.

The appeals court disagreed. In upholding the decision, it cited the “broad reach” of §1981, which was intended to protect “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” The Court clarified that a race discrimination claim is not limited to physical or “genetically determined” characteristics such as skin color; instead, it noted that “a group’s ethnic characteristics encompass more than its members’ skin color and physical traits. Names are often a proxy for race and ethnicity.” Therefore, even though the CEO did not call this employee by a racial epithet, his refusal to use the employee’s actual name was still illegal race discrimination.

The Court also rejected the defendants’ claim that the behavior was not severe or pervasive enough to create a hostile work environment. It found that although the conduct may not have been “especially severe” it was frequent and pervasive and continued until the employer closed its office, despite repeated protests by the employee.

Finally, the defendants argued that there was no evidence of intent because even if the employee felt the Western versions of his name had racial implications, there was no evidence that the CEO felt that way. The Court rejected this argument as well, noting that it was clear the CEO “intended to discriminate” against El-Hakem’s Arabic name in favor of a non-Arabic name. Therefore, the Court found sufficient evidence of intent.

This case, El-Hakem v. BJY, Inc., came out of the 9th Circuit and therefore is not necessarily binding on courts in Maine. However, the lesson from the case is a good reminder to treat all employees, despite race or ethnic background, with respect.

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.