Friday, May 24, 2013

Viet Cong slurs not enough to create a hostile work environment

This plaintiff alleges that an employer did not give him a permanent position because of his national origin, and that co-workers had created a hostile work environment in violation of Title VII. The Court of Appeals affirms the grant of summary judgment.

The case is Chansamone v. NRG Northeast Aff Service, a summary order decided on May 3. First, the failure to hire claim. Plaintiff says he was not hired because he is from Laos. The employer offers a neutral reason for that decision: it says that plaintiff was abrupt on the phone when he called to inquire about the status of his application. His resume also overstated his experience. Plaintiff cannot overcome these neutral reasons, and the failure to hire claim goes nowhere.

He also says his co-workers ridiculed his national origin. There is some meat to this claim. According to plaintiff, his co-workers were still fighting the Vietnam War. Someone called him "VC" (or Viet Cong) and said that "I used to kill people like [plaintiff]." Some other co-worker made reference to an "Asian gay lover" and that he would not be hired because of his race. The Second Circuit says these comments were "undoubtedly offensive." But they do not rise to the level of a hostile work environment under Title VII. The VC and death comments are not "extraordinarily severe" enough violate the civil rights laws, and the Court contrasts this case with those where a black employee is called a "nigger." The Second Circuit also says this case is unlike Whidbee v. Garzarelli Food Services, 223 F.3d 62 (2d Cir. 2000), where a lynching comment was only part of the stream of racially-offensive arguments.

An interesting law review article could be written on the question of whether racial comments to a Laotian that reference the Vietnam War are comparable to racial comments that reference the lynching of American blacks. I am sure the plaintiff's lawyer in this case pushed that comparison in briefing this case. But that argument does not carry the day. The case is dismissed.

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