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By Mary Leigh Pirtle

Mistake of fact is no defense

A U. S. District Court in Hawaii has held that an employer cannot escape liability for a discrimination claim by simply showing that the discrimination was based on a mistake about the employee’s characteristics.  In this case, an employee filed a claim against his employer alleging he was discriminated against because of his national origin.  The employee, originally from Columbia and who had a thick Spanish accent, claimed he “was unrelentlessly harassed” by his supervisor because the supervisor thought he was from Mexico.   Specifically, the employee claimed  his supervisor referred to him as “Pancho Villa” or “Amigo” constantly, as well as a “dumb Mexican.”  Other employees testified that they also overheard the supervisor calling the employee racial slurs, such as a “slippery Mexican” and a “wetback.”  The employee sued after he was demoted for national origin discrimination.

Perception is key
In attempted to dismiss the case, the employer argued that because the employee was not actually Mexican, and was instead Columbian, the supervisor’s actions did not constitute protected discrimination.  Essentially, the employer’s argument amounted to a claim that because the employee was not actually a “slippery Mexican,” there was no discrimination in calling him a “slippery Mexican.”  The district court stated that even though the employee was not actually from Mexico, he could maintain a “perceived as” national origin claim if the discrimination was based on characteristics, such as his accent, that would lead others to connect him to Mexico.  In finding in favor of the employee, the court stated, “to hold otherwise would allow prohibited discrimination to go unredressed on the basis of an error in no way diminishing the harm to the victim of the discrimination.”  Thus, the employee was allowed to proceed to trial with his “perceived as” discrimination claim based on the slurs against a nation the employee was not from.

Problem for employers down the road
This case essentially expands the bubble of Title VII protection to not only those employees in federally protected classes, but also to those employees who are “perceived as” being part of one of the protected classes, further enlarging the scope of an employer’s potential liability as well as its responsibility to adequate educate and train its employees.

Read the case here.

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