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What's in a Name? A Basis for Discrimination, Says 9th Circuit

The 9th U.S. Circuit Court of Appeals said last week that Gregg Young, the CEO of BJY Inc., should not have insisted on calling Mamdouh El-Hakem "Manny" or, for that matter, "Hank." The court found that imposing a name change amounted to discrimination, even if racial or ethnic epithets were not used. The ruling is the latest to reinforce the view that a wide range of behavior can create a hostile work environment, along with liability for employers who allow harassment.

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“A good name,” wrote Cervantes, “is better than riches.” Mamdouh El-Hakem would agree. After spending years fighting a former employer who thought his name wasn’t good enough, El-Hakem was vindicated by the 9th U.S. Circuit Court of Appeals last week with a modest amount of money — and an opinion that reaffirms the value of his name. In a ruling that bolsters plaintiff arguments that discrimination can take many forms, the 9th Circuit said that Gregg Young, the CEO of BJY Inc. should not have insisted on calling El-Hakem “Manny.” Or, for that matter, “Hank.” “Young intended to discriminate against El-Hakem’s Arabic name in favor of a non-Arabic name,” Judge Johnnie Rawlinson wrote for a three-judge panel, “first by altering Mamdouh to ‘Manny’ and then by changing Hakem to ‘Hank.’” The ruling is the latest to reinforce the view that a wide range of behavior can create a hostile work environment, along with liability for employers who allow harassment. “It’s a broadening of the application of pre-existing law,” said Barbara Lawless, a partner with the plaintiff firm Lawless & Lawless. “Definitely, there’s a trend of applying the law more liberally.” The trend, she said, was also clear in last week’s California Supreme Court decision that sexual favoritism was a form of workplace discrimination. That ruling came in a case that Lawless brought in the trial court. Employment defense lawyers agreed with Lawless — and with the court — that imposing a name change amounted to discrimination, even if racial or ethnic epithets were never used. “It’s a message to employers that these kinds of actions, which may seem insignificant or trivial to some people, will lead to liability,” said Richard Curiale, a partner at Curiale Dellaverson Hirschfeld & Kraemer who represents employers. He said the most surprising part of the case is that it went as far as the 9th Circuit. “I would have said, ‘Let’s settle the case, or we’ll lose,’” he said, adding that in training courses his firm tells managers to avoid behavior that treats employees differently. Jeffrey Wohl, a partner with Paul, Hastings, Janofsky & Walker who defends employers, also agreed with the court. He said that employers should understand that differential treatment for any reason can open a company up to litigation. “Discrimination means treating people differently and adversely because of a particular characteristic,” he said. But this broad definition, he added, isn’t always clear to employers. The ultimate lesson employers should learn from the opinion, Wohl added, is that in certain situations, even the names “Manny” and “Hank” — hardly racial epithets on their own — can be as damaging as “the n-word.” “I think it’s yet another example that context is everything,” he said.

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