Supervisor Believes Employee Is Of “superior” National Origin!
Employee Claims Harassment!
It is not often that an employee is subjected to physical and verbal abuse because his supervisor views the national origin of the employee as superior. Such stereotyping, however, is nonetheless, as recently noted by United States Court of Appeals, “an evil” at which the federal employment discrimination statute is aimed.
In this case, Kang, a United States citizen of Korean national origin, asserted that his supervisor, Yoon, also of Korean origin, verbally and physically abused him and other Korean workers because Yoon viewed their national origin as superior.
As the court states:
“Kang presented evidence that Yoon abused him because of Yoon’s stereotypical notions that Korean workers were better than the rest and Kang’s failure to live up to Yoon’s expectations. On numerous occasions, Yoon told Kang that he had to work harder because he was Korean; he contrasted Koreans with Mexicans and Americans who he said were not hard workers . . . Yoon did not subject any of them to physical abuse.”
The court further reports Kang’s claim that
“Yoon subjected Kang and other Korean workers to verbal and physical abuse and discriminatorily long work hours. The verbal abuse consisted of Yoon screaming at Kang for up to three hours day and calling him ‘stupid,’ ‘cripple,’ ‘jerk,’ ‘son of a bitch,’ and ‘asshole.’ The physical abuse consisted of striking Kang in the head with a metal ruler on approximately 20 occasions, kicking him in the shins, pulling his ears, throwing metal ashtrays, calculators, water bottles, and files at him, and forcing him to do ‘jumping jacks.’ Kang began to cut back on the required overtime in order to spend time with his pregnant wife; Yoon fired him.”
Kang worked for U. Lim America which, according to the decision, employed no more than six individuals. All of these employees, however, would daily travel daily from the San Diego area to a Tijuana factory operated by another company, U. Lim de Mexico which “employed between 50 - 150 workers – all citizens of Mexico.”
U. Lim de Mexico was organized under the statutes of Mexico and assembled parts for televisions and computer monitors for sale only to U. Lim America which was U. Lim de Mexico’s only customer. Yoon’s father owned both U. Lim America and U. Lim de Mexico. There was obviously a close relationship between the two companies, a point not lost on the Court of Appeals.
Why is this close business relationship of these business enterprises of importance? The federal employment discrimination statute does not apply to employers with less than 15 employees. Although U. Lim America only employed six, when these employees were combined with the employees of U. Lim de Mexico, more than 15 individuals were involved.
The legal jargon for “close business relationship” is “integrated enterprise.” In determining whether there exists an integrated enterprise, the Court of Appeals examined the factors of (1) interrelation of operations, (2) management, (3) centralized control of labor relations, and (4) common ownership or financial control.
In reviewing Kang’s harassment claim, the Court of Appeals noted that there was sufficient evidence to justify a trial on the claim. The court noted that to prevail on such a claim, he must show:
“(1) that he was subjected to verbal or physical conduct because of his national origin; (2) ‘that the conduct was unwelcome’; and (3) ‘that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive work environment’.”
The Court of Appeals also held that there was sufficient evidence to justify a trial regarding Kang’s claim for disparate treatment, noting that to make out a case for such a cause of action, Kang must demonstrate
“(1) he belonged to a protected class; (2) he was qualified for his job; (3) he was subjected to an adverse employment action; and (4) similarly situated employees not in his protected class receive more favorable treatment.”
Kang demonstrated to the court that he was a member of a protected class, namely, people of Korean national origin. Kang adequately also raised the claim that he would not have been required to work as much overtime if he had not been Korean and thus raised the issue as to “whether similarly situated non-Korean employees were treated more favorably” with the result that he was subjected to disparate treatment.
On others being treated more favorably, Kang asserted that
“Yoon abused him and required Koreans to work longer hours because Yoon believed Koreans workers were superior to Mexicans and Americans. Specifically, Yoon allegedly said that American workers were lazy and that he took pity on them; that Mexicans were lazy and that they would rather spend money than work; and that ‘Koreans must work hard because Mexicans [are] unreliable and you have to watch out for them.’”
The moral of the story? Bestowing the accolade of “superiority” upon your employee does not provide a “green light” to dish out verbal or physical abuse!