'Following the President's Words Can Lead Employers to Big Trouble'

As the fallout from President Trump's racist tweets gripped Washington and beyond, a Shipman & Goodwin employment-law partner hit Westlaw to examine court decisions in cases where judges confronted the language “go back to your country” arising in discrimination cases.

“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?” Shipman & Goodwin's Daniel Schwartz wrote in a blog post. “Do courts find that this language can be used to find employment discrimination? As it turns out, courts have quite a bit to say.”

The language, standing on its own, isn't necessarily strong evidence of bias, Schwartz said. “But on the flip side, those comments have also been the foundation for jury verdicts that the courts have upheld so clearly there's something there that courts find wrong,” Schwartz said in an email to Law.com.

Trump has denied that his statements—directed at four minority female House Democrats who are each a U.S. citizen—were racist. Freshmen Democrats Alexandria Ocasio-Cortez of New York (at left), Ayanna Pressley of Massachusetts, Rashida Tlaib of Michigan and Ilhan Omar of Minnesota called the president's tweets a “blatantly racist” attack. “You're right, Mr. President—you don't have a racist bone in your body. You have a racist mind in your head, and a racist heart in your chest,” Ocasio-Cortez said in a tweet this week.

Schwartz's post at his Connecticut Employment Law Blog highlighted several court rulings in the labor and employment context. He also said he looked at national-origin discrimination guidance issued by the U.S. Equal Employment Opportunity Commission. (Schwartz has been blogging on employment law for more than a decade—he once said friends call him the “Blog Father.”)

One of the cases Schwartz noted said this: “A party is able to establish a discrimination claim based on its own national origin even though the discriminatory acts do not identify the victim's actual country of origin,” a panel of judges at the U.S. Court of Appeals for the Fifth Circuit said in a decision in 2007.

The EEOC's national-origin guidance points to that Fifth Circuit ruling. Direct from the agency's guidance: “A 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.”

EEOC also says on its website: “Examples of potentially unlawful conduct include insults, taunting, or ethnic epithets, such as making fun of a person's foreign accent or comments like, 'Go back to where you came from,' whether made by supervisors or by co-workers.”

A 2017 decision by the U.S. Court of Appeals for the Eighth Circuit, which Schwartz highlighted, examined a verbal argument between a sales manager and a worker at a mobile-phone kiosk. The sales manager allegedly told the worker, a Palestinian immigrant, to “go back home, go to your country.” The court concluded the alleged comment was “facially neutral as to national origin” and therefore not enough to show discrimination based on national origin.

A management-side attorney at the firm Shawe Rosenthal wrote in a blog about the ruling: “As a U.S. born citizen of Chinese descent, I have had exactly that same statement said to me several times over the years—and you can bet I interpreted it as being discriminatory against my Chinese background and that it was intended by the speaker to be discriminatory.”

Schwartz said that “despite the political rhetoric, the rules in the workplace haven't changed.” Employers “still have to provide a workplace free from discrimination and harassment on the basis of race or national origin.”

As he put it in his blog post: “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.”

>>> More reading here at ABC News: US Government Routinely Sues Companies for Language That Mirrors Trump's Racist 'Go Back' Tweets

Welcome to Labor of Law—I'm Mike Scarcella in Washington, and you can reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

Who Got the Work

>> A team from Ogletree, Deakins, Nash, Smoak & Stewart is representing Virginia State University in the U.S. Supreme Court, where a sociology professor, Zoe Spencer, is challenging a federal appeals court ruling. Spencer has alleged the university has violated the Equal Pay Act and Title VII for paying her less than two male professors. The Ogletree team includes Jimmy Robinson and Elizabeth Ebanks, a shareholder in the firm's Richmond office and counsel of record. The university plans to respond to Spencer's cert petition by early September.

>> Sara Simeonidis, of counsel at Jackson Lewis in Hartford, Connecticut, represented United Health Corp. in a whistleblower case at the U.S. Labor Department. Mick Harrison represented complainant Michael Katz. An administrative law judge on July 10 issued an order approving a settlement and dismissing the case.

>> The New Jersey Supreme Court has agreed to consider whether a company's failure to accommodate an employee's medical marijuana usage provides the basis for a discrimination claim. The court will hear Wild v. Carriage Funeral Holdings, in which a funeral director was fired after his employer discovered he was using medical marijuana as part of his cancer treatment, my colleague Charles Toutant reports. Jamison Mark of The Mark Law Firm represents the employee, and Steven Luckner of Ogletree Deakins represents the funeral home.

Around the Water Cooler: Meet Patrick Pizzella; Component 2 Data Collection; New Walmart Ruling

>> Business Groups See Acosta Successor as More Aggressive Deregulator. Business groups expect the new acting leader of the Labor Department to move more quickly on deregulatory efforts than Labor Secretary Alexander Acosta, who resigned Friday. Patrick Pizzella (above), who was confirmed just over a year ago as deputy secretary, becomes acting secretary when Mr. Acosta's resignation takes effect next week. [WSJ] More here at Politico: Trump's Acting Labor Secretary Pick Feared by Unions. And here at NYT: Trump's Top New Labor Official Is Expected to Advance Anti-Labor Agenda.

>> JPMorgan has lost its latest bid to dismiss a U.S. Labor Department administrative case alleging pay discrimination. JPMorgan's legal team at McGuireWoods had argued the OFCCP failed to state a claim of systemic compensation discrimination. The bank also challenged whether the administrative law judge, Jerry DeMaio, was lawfully sitting in the wake of the U.S. Supreme Court's Lucia decision last term. “The jurisdiction of this court is administrative, and limited; I lack the authority to decide constitutional issues,” DeMaio said in his July 11 decision. He said the bank's constitutional challenge would be “preserved for the appellate record.” The judge also concluded the Labor Department's complaint sufficiently alleged JPMorgan has discriminated against female employees with regard to their compensation. The bank has denied the allegations.

>> US Filing Opens for Company Pay Data, Bringing New Legal Risks to Employers. “The EEOC's pay data collection rule creates another administrative burden for companies while raising questions about how the data will be used and analyzed,” Brett Coburn, a partner in Alston & Bird's labor and employment practice, said. [Law.com]

>> In Win for Trump Administration, Appeals Court Stymies Union Challenge to Civil Service Restrictions. “The decision by the U.S. Court of Appeals for the D.C. Circuit reverses a ruling last year that struck down key provisions in three executive orders signed by President Trump that rolled back civil service protections, making it easier to fire employees and weaken their union representation.” [The Washington Post] Read the ruling here.

>> Walmart Workers Must Pursue Sex Bias Claims as 79 Suits. “Two groups of women who brought separate cases against Walmart for alleged systemic sex discrimination must pursue their claims in 79 individual lawsuits, a federal judge in Florida ruled. All 79 women worked at different stores, held different positions, and worked during different time periods, the U.S. District Court for the Southern District of Florida said July 12.” [Bloomberg Law] Read the court ruling here.

>> How Employers Are Preparing for a Gender Non-Binary World. “Larger companies have begun making small but measurable efforts to recognize gender non-binary workers or customers—instituting gender-neutral language in communications, training customer service employees to ask about preferred pronouns or updating dress codes or restroom facilities to accommodate people across the gender spectrum. [The Washington Post]

Notable Moves and Announcements

• Three veteran labor relations lawyers have joined Perkins Coie in the firm's Dallas and Washington offices, my colleague Samantha Stokes reports. Richard Hankins, Seth Borden and Brennan Bolt joined Perkins Coie from McGuireWoods. Hankins and Bolt will be based in Perkins Coie's Dallas office, and Borden will be based in Washington. All three were partners at their former firm.

• Reed Smith LLP's growth in its new Dallas office continues. The firm has hiredlabor and employment partners Paulo McKeeby and Michael Correll from Morgan, Lewis & Bockius.

• Jackson Lewis has added two principals to its San Francisco office. Labor and employment lawyers Gina Roccanova and Donald Sullivan have joined the New York-based firm from Meyers Nave Riback Silver & Wilson and Wilson Elser, respectively, my colleague Xiumei Dong reports.

• Pryor Cashman has hired Shane Stroud as co-leader of the firm's executive compensation, ERISA and employee benefits group in New York. He joins from Hughes Hubbard & Reed.

• John Quill has joined Mintz, Levin, Cohn, Ferris, Glovsky and Popeo as chair-elect of the immigration practice. Quill joins from Seyfarth Shaw, where he had been a partner.