Calling Muslim Clerk ‘Bin Laden’ Could Create Hostile Work Environment

By Dave Strausfeld, J.D.

July 1, 2016

http://www.employmentlawdaily.com/index.php/news/calling-muslim-clerk-bin-laden-could-create-hostile-work-environment/

A Muslim hospital clerk of Indian descent survived summary judgment on his Title VII claim that he was subjected to a hostile work environment by being repeatedly called “Bin Laden” by his supervisor and some of his coworkers, held a federal district court in Illinois. Referring to him by this nickname was facially motivated by his race and religion, and a reasonable jury could find that the harassment was severe or pervasive. But his discriminatory discharge claim failed because there was no evidence that the hospital’s justification for terminating him—insubordination and threats—was pretextual (Khan v. County of Cook dba John H. Stroger, Jr., Hospital of Cook County, June 28, 2016, Blakey, J.).

Altercation with supervisor. On July 8, 2012, the hospital clerk became annoyed when his supervisor moved his lunch break back one hour and, as he recalled it, did not inform him of this until 10 minutes after he was supposed to have started his break. When he asked for an explanation for the change, his supervisor allegedly replied, “Bin Laden, I don’t have to give you no reason.” The clerk then raised his voice and, according to his supervisor, got very close to her face, threatened her with harm, and called her a “black bitch.” He was then escorted from the hospital.

Following the blowup, the clerk was subject to a disciplinary hearing at which seven witnesses—three patients and four hospital employees—all supported his supervisor’s version of the altercation. As for the label “Bin Laden,” there was also testimony that his supervisor had called him this on other occasions and that, after she began using this appellation, other employees followed suit and sometimes called him “Bin Laden” in the supervisor’s presence. Nonetheless, based on the clerk’s insubordinate and threatening behavior during the July 8 altercation, the hearing officer recommended that he should be terminated, noting also prior disciplinary incidents on his record. The clerk subsequently brought this suit.

Discriminatory discharge under Title VII. “Given the context of the United States’ war on terrorism and Bin Laden’s attacks on the United States in 2001,” the court began by observing, the reference to the hospital clerk—a Muslim man—as “Bin Laden” could obviously “be deemed offensive under the facts of this case.” Even so, there was no evidence that this offensive nickname related to the hospital’s motivation for firing him or that the reason the hospital gave for its decision—his insubordinate and threatening behavior on July 8—was a pretext or lie.

The clerk alternatively sought to prove discriminatory discharge by pursuing a “cat’s paw” theory (i.e., by arguing that a decisionmaker was manipulated by someone with bias), but this argument failed because the hearing officer did not simply accept the supervisor’s version of events but rather conducted an independent investigation into the July 8 incident. Because there was no evidence that the hearing officer’s decision to recommend his termination was infected with bias, the clerk’s discriminatory discharge claim failed.

HWE under Title VII. The clerk had more success on his HWE claim. “Using the ‘Bin Laden’ nickname to refer to a Middle Eastern Muslim man,” the court noted (describing the clerk, who was of Indian descent, as Middle Eastern), “is facially motivated by his race and religion.”

While it was a “close call” whether the alleged harassment could be found severe or pervasive, the Bin Laden comment was more than just a one-time occurrence, and other employees followed his supervisor’s “poor example and adopted the slur,” the evidence showed. And, without question, the slur was directed at him and only at him. Given the relative burdens of persuasion, the court found that the clerk had offered enough to get to a jury on this point. While the hospital insisted the clerk considered such comments as teasing, the clerk denied this and the court was not convinced of it either.

He also established a basis for holding the hospital liable, because the Supreme Court held in Ellerththat an employer is vicariously liable under Title VII for a hostile environment created by a supervisor (with the possibility of asserting an affirmative defense).

Other claims. But the clerk could not proceed to trial with his claim under Section 1983 for violation of the rights guaranteed by Section 1981, because he presented no evidence that the actions of his supervisor were motivated by a policy or custom at the county-run hospital. He also could not move ahead with his claims against the hospital for negligent hiring and supervision of his supervisor, because he could not satisfy the elements of those torts.

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