Is It Workplace Harassment to Tell an Employee to Go Back Where She Came From?
Last week, President Trump made headlines when he tweeted that “‘progressive’ Democrat Congresswomen … originally came from countries” that were “totally broken and crime infested,” and that they should “go back” to the “places from which they came.” (Three of the Members he was referencing were born in the U.S., and one is a naturalized U.S. citizen. All are women of color.)
This is an employment law blog, so naturally, President Trump’s tweet raised our antenna on an employment law issue: can telling someone to go back to the country they came from constitute prohibited discrimination or harassment?
Before we answer, a brief recap of federal discrimination law is in order. Title VII of the Civil Rights Act makes it unlawful to discriminate against employees based on race or national origin, among other characteristics. Discrimination includes making unfavorable employment decisions based on these characteristics, and it can also take the form of harassment, or “unwelcome conduct.” If harassment is frequent or severe enough, it can create a hostile work environment, and potential liability for an employer.
So is it “unwelcome” harassment to tell someone to go back to the country she came from? Yes, says the Equal Employment Opportunity Commission (EEOC), which is the U.S. government agency charged with enforcing Title VII. According to the EEOC:
Ethnic slurs and other verbal or physical conduct because of nationality are illegal if they are severe or pervasive and create an intimidating, hostile or offensive working environment, interfere with work performance, or negatively affect job opportunities. 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. (Emphasis added.)
That sounds pretty clear. But has anyone actually been sued based on this kind of comment?
Yes again. In the EEOC’s enforcement guidance on national origin discrimination, it describes the case of EEOC v. WC&M Enterprises, 496 F.3d 393 (5th Cir. 2007). In WC&M, the EEOC charged a car dealership with harassment of a Muslim salesman born in India. The other employees of the dealership called him “Taliban” and asked him, “Why don't you just go back where you came from since you believe what you believe?” His manager told him, “This is America. That’s the way things work over here. This is not the Islamic country where you come from.”
The district court granted summary judgment against the EEOC, ruling that it could not show national origin discrimination or that the alleged harassment was severe or pervasive. But the Fifth Circuit reversed. It relied on the “go back where you came from” comment as support for its conclusion that a jury could find the comments “motivated by animus stemming from [the employee’s] religion and national origin.” It also ruled that the harassment could be considered severe or pervasive.
Similarly, in Yarde v. Good Samaritan Hospital, the plaintiff’s employer allegedly called her a “black bitch” and told her to "go back where you came from." The court ruled that this, in combination with other incidents, was sufficient to survive summary judgment on a hostile work environment claim.
Meanwhile, in McCurdy v. Auburn University, the plaintiff alleged that she was told “go back where you came from.” The defendants argued that this was not a racial remark. But the court stated that “[e]ven without an explicit racial slur, when told to a black worker, it can easily mean ‘go back to Africa,’ a common slur that courts have recognized before.”
By contrast, in George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005), the court ruled that there was no hostile work environment where co-workers told an employee on three separate occasions to “go back where she came from,” because those were “isolated incidents.” The court in Iovin v. Northwestern Memorial Hospital, 916 F. Supp. 1395 (N.D. Ill. 1996), reached a similar conclusion.
Of course, just because a comment, standing alone, may not be enough to support liability for a hostile work environment doesn’t mean you should make it. There are a number of other judicial opinions, in and outside the employment context, recounting similar remarks and characterizing them as slurs or offensive language.