Workplace discrimination against Middle Eastern employees is a trending topic in employment law. In the February ELR, we wrote about the EEOC’s recent guidance regarding the need for increased efforts to protect Muslim and Middle Eastern employees from unlawful workplace discrimination or harassment in the aftermath of recent terrorist events. Employers need to keep these types of issues on their radar and remain alert to any situations that may arise. A new decision from the Tenth Circuit Court of Appeals allowing a case to proceed to a jury trial reinforces the importance of these issues.

Zeynep Unal is an elementary teacher in a New Mexico public school district. Ms. Unal is a Turkish-born Muslim who speaks with a distinct Turkish accent, and she was the only foreign-born teacher at her school. After a new principal (who supervised Ms. Unal) was hired in 2008, Ms. Unal claimed that the school had a culture of racial and ethnic insensitivity and that the principal and her staff made, encouraged, or acquiesced in various harassing or discriminatory comments and created a hostile work environment for Ms. Unal because she was foreign.

Ms. Unal complained about three instances in which she was the direct target of offensive comments overtly related to her nationality. On one occasion during lunch in the faculty lounge, a group of teachers and staff were discussing an American movie and the principal specifically excluded Ms. Unal from the conversation and said to her (in front of others),”you wouldn’t know about this” because you are “not from here.” In a second incident during an after-school Christmas concert, the principal thanked various teachers for their attendance but approached Ms. Unal (again, in front of others) and asked, “what are you doing here?”–apparently hinting at her Muslim faith despite the fact that Ms. Unal’s child was participating in the holiday program. On yet a third occasion, another staff member called Ms. Unal “a turkey from Turkey.” In addition, the principal would condescendingly correct Ms. Unal’s pronunciation in front of other teachers on a regular basis.< /p>

Ms. Unal also complained that, beyond comments made directly to her, the principal and her staff made insensitive remarks about other nationalities, too. They made derogatory comments about Vietnamese and other Asian families on multiple occasions and would make announcements over the school’s loudspeaker in feigned foreign accents and laugh about it. The Tenth Circuit found this conduct to support Ms. Unal’s allegations of harassment, noting that “although evidence of animus directed at a plaintiff’s particular nationality provides the strongest evidence of a hostile work environment, evidence of a general work atmosphere, including evidence of harassment of other nationalities, may be considered in evaluating a claim” as long as the employee was present when the harassing comments or behavior occurred or she otherwise knew about it at the time.

Ms. Unal additionally claimed that she was treated differently than her peers because of her Turkish national origin. Specifically, she complained that: the principal sent certain work-related emails to all other teachers but intentionally excluded Ms. Unal from those communications; the principal solicited negative feedback about Ms. Unal’s performance but did not seek criticism about other teachers; the principal excused other teachers from attending meetings organized by Ms. Unal but required attendance at meetings organized by others; the principal waited several months after Ms. Unal requested an instructional assistant before assigning one to her but provided instructional assistants to U.S.-born teachers almost immediately; and the principal moved Ms. Unal to a portable classroom without explanation. Though this abusive conduct was facially neutral (in that it did not overtly relate to Ms. Unal’s national origin, as the other derogatory comments did), the cour t cautioned that that it should “avoid viewing individual instances of hostility in isolation.” Instead, the court stressed that it must look at the “totality of the circumstances” and “the general work atmosphere” and not only the “specific hostility targeting” Ms. Unal.

Taken together, all of the above-described allegations about the principal’s (and her staff’s) conduct demonstrated harassment that was sufficiently severe or pervasive to support Ms. Unal’s Title VII claim for hostile work environment based on her national origin and status as a foreigner. Although the principal’s conduct took place during a wide timespan (from 2008 to 2011), the objectionable behavior and comments were persistent and occurred with enough frequency such that a jury could conclude that Ms. Unal experienced a pervasively hostile work environment that was both subjectively and objectively abusive.

By Rebecca D. Stanglein, rstanglein@dsda.com