Eric Bachman spoke today with ABC News about the employment law implications of President Trump’s recent remarks to four minority Congresswomen that they should “go back” to the “crime infested places from which they came.” ABC news asked Bachman about how President Trump’s statements may be interpreted in an employment case in the private sector.
Eric Bachman, a former Department of Justice Civil Rights Division prosecutor who specializes in anti-discrimination cases, told ABC News that the president’s tweets would be “as close to a slam-dunk discriminatory claim as you can get” if he had uttered them as the head of a private company rather than as chief executive of the United States.
Bachman continued that, “frankly, if there was a board of directors, they would be taking action to fire him if he were the president of a company . . . This would almost certainty violate Title VII of the 1964 Civil Rights Act and a host of other civil rights-related laws.”
ABC News’ Luke Barr further reported that, “in the days since the president’s tweet, civil rights groups have pointed out the sordid history of the “go back to where you came from” racial epithet and its expansion as an insult beyond immigrant groups to anyone who may be a person of color.”
Tone at the top
If Trump were still the head of a private company, a plaintiff in an employment discrimination lawsuit would almost certainly point to the litany of statements he has made over the years as evidence that the company’s actions against non-white employees were motivated by discrimination. And thus Trump’s statements could serve as important evidence that the actions taken against non-white and/or female employees, such as demotions and firings, constituted unlawful discrimination under various civil rights laws.
What is a “hostile work environment”?
To prove a hostile work environment claim, an employee must show that the underlying acts were severe or pervasive. A single act of severe harassment, such as a sexual assault, is actionable under Title VII of the Civil Rights Act. The acts, however, must be based the employee’s protected characteristic (for example, gender, race, national origin, religion, disability).
Petty slights and generally rude behavior will not rise to the level of an unlawful hostile work environment.
To determine whether harassment violates Title VII, courts consider the following factors:
- the frequency of the discriminatory conduct;
- its severity;
- whether it is physically threatening or humiliating, or a mere offensive utterance; and
- whether it unreasonably interferes with an employee’s work performance.
The employer may automatically be liable if a supervisor harasses an employee that causes an adverse action like termination, lost wages, or a suspension.
If a supervisor creates a hostile work environment for an employee, then the employer will escape liability only if it can prove:
- it reasonably tried to prevent and promptly correct the harassing behavior; and
- the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer
If a non-supervisory employee harasses another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.