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Insensitive Comments Lead to National Origin Discrimination Lawsuit

It's been 70 years since World War II ended, but apparently there are some out there who still don't like Germans. Everybody is entitled to an opinion, but when one's prejudices are expressed at work, it becomes a whole different ballgame. National origin discrimination is illegal. A recent case handed down a couple of weeks ago illustrates how even stray remarks can be decisive in national origin discrimination cases.

Iris Wilkie, a German native, began working for Geisinger Health Plan in March 1999. She held several different positions, including telemarketing rep, marketing systems analyst, and a call center sales coordinator. In 2009 a new supervisor came in and started receiving complaints about Wilkie's performance at work. After several performance improvement plans were issued to her, she was fired in March 2011.

In her subsequent lawsuit, Wilkie claimed that her supervisors told her they were "not fond of Germans". In her depositions, she noted that one supervisor referred to her as "LH", of "little Hitler", and that he would make jokes about Hitler in meetings and if front of other employees. Her supervisor also allegedly told her not to "speak German on personal calls" at work and insisted that her emails be screened because her "English is too bad to write." In addition, another supervisor allegedly mocked her accent and difficulties with English in an email.

The Pennsylvania Federal Court found, after a lower court had thrown out the case, found that the comments constituted sufficient evidence of discriminatory animus to make out a prima facie case. It also pointed out that although the company presented a legitimate reason for her discharge, her evidence indicated that the reasons were merely a pretext for discrimination.

Although the company argued that the supervisors were in fact of German descent, the court found that "it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group."

In another indication of discrimination, the supervisor prohibited Wilke from speaking German, even on phone calls to her own husband. The court stated that "language may be used as a covert basis for national origin discrimination", and that if she was the only employee prohibited from speaking another language, that would also be indicative of discrimination.

The takeaway: Many employers bring their prejudices to work with them, as irrational as they might be, and can't help themselves from making stray comments, sometimes jokingly, which indicate a not so hidden bias against a certain nationality. That's no way to run a company, and by the way, it is illegal to turn those comments into an adverse employment action against an employee.

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