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Thursday
Aug252005

Nickname by Supervisor Costs $30,000 +

Mandough El-Hakem's boss would call him "Manny" instead of Mandough and "Hank" instead of El-Hakem. Mr. El-Hakem filed a discrimination lawsuit and was awarded $30,000 by the jury. This award does not include the employer's attorney fees for the trial and appeal which were no doubt substantial. To add insult to injury, the employer will probably also be ordered to pay Mandough El-Hakem's attorney fees.

The employer appealed the jury verdict to the Ninth Circuit Federal Court of Appeals (the federal appeals court that governs Oregon). The Ninth Circuit ruled that ethnic characteristics encompasses more than skin color and physical traits and that names can be a proxy for race and ethnicity. Even if the supervisor's conduct was not severe, according to the court, the employer can still be liable. The jury award was upheld.

The case is El-Hakem v. BJY Inc., No. 03-35514. U.S. Court of Appeals, 9th Circuit, July 21, 2005.

This case should be a warning for all employers. There are steps that you can take.

DO: Do clearly state your anti-harassment and anti-discrimination policies.

DO: Do remember that something as simple as nicknames can lead to discrimination claims and to findings of liability by juries and judges.

DO: Do make it easy to report any claims of harassment or discrimination. Only by encouraging reports can you prevent and correct improper conduct and demonstrate, if you are ever sued, that you enforce your policy.

DO: Do remind your supervisors over and over again that they are the arms and legs and voice and ears of the organization. Anything they say or do or see or hear is as if it was said or done or seen or heard by your president or owner.

DO: Do let employees know that there will be no retaliation for complaints of inappropriate conduct they experience or observe.

DO: Do promptly investigate any complaints of inappropriate conduct. There is a right way and a wrong way to conduct investigations. We can offer suggestions on how to conduct a proper investigation.

DON'T: Don't assume that everything is fine in your work place. Train your supervisors, listen to your employees, keep your eyes and ears open and deal with problems before they escalate into full-blown employee lawsuit or administrative claims.

As always, I welcome your questions on this or another legal topic.

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