Over the weekend, President Trump tweeted out that several prominent “‘Progressive’ Democrat Congresswomen” (who, it shouldn’t have to be said but does, are all American citizens, most of whom were born in the United States) should  “go back and help fix the totally broken and crime infested places from which they came.”

This language has, rightly, been condemned.  But I wondered — what does employment law have to say about this type of language in the private workplace context? Do COURTS find that this language can be used to find employment discrimination?

As it turns out, courts have quite a bit to say

For example, in Brewster v. City of Poughkeepsie, a District Court refused to overturn a jury verdict against an employer where there was evidence that a similar comment was made to the Plaintiff who was of Cuban national origin.

When asked on direct examination if anything was said to her in the station about her race or ethnicity, plaintiff replied that people said to her, “Speak English. Go back to your own country if you want to speak Spanish. You’re in our country.”  These comments referencing plaintiff’s country—as opposed to simply comments about her language—coupled with remarks to [another employee] about Fidel Castro—the national leader of Cuba—provide some basis on which the jury could conclude that the hostility directed at plaintiff was based, not only on the language she spoke, but also on her Cuban national origin.

In EEOC v. WC&M Enterprises, Inc., the Fifth Circuit reversed summary judgment to the employer finding that evidence that a co-worker said to the Plaintiff (born in India and a practicing Muslim), “Why don’t you just go back where you came from since you believe what you believe?”

The EEOC issued 2016 guidance on national origin discrimination claims that even cites to this case “noting that hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent.”

And a District Court in 2016, Cerezo-Martin v. Agroman, denied summary judgment to an employer where several co-workers disparaged the plaintiff repeatedly telling him that he “should return to his home country and engaged in xenophobic name calling”.

That said, other courts have said that such language might not be enough particularly when it was just one comment not made by a supervisor.  In Abdel-Ghani v. Target Corp., the Eighth Circuit said that a single comment to a plaintiff that he should “go back home, go to your country” was “facially neutral as to national origin” and therefore did not demonstrate animus.

Suffice to say that using language in the workplace that employees should “go back to their country” or words to those effect can and will be used as a basis of employment discrimination claims. I never thought I’d say this, but following the President’s words can lead employers to big trouble. Human Resources professionals should be on notice to see if any of this national dialogue weaves its way into the private workplace. If so, HR should be speaking up to shut it down.

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