- A Hispanic UPS employee who was, among other things, scolded by his manager as a "kid who doesn’t even speak Spanish" wasn’t subjected to race or national origin discrimination, the 10th U.S. Circuit Court of Appeals has ruled (Payan v. United Parcel Service, et al. No. 16-4188 (10th Cir., Oct. 4, 2018)).
- After several years with UPS, Charles Payan received a new supervisor, Charles Martinez, who also was Hispanic. The supervisor removed Payan from a list of employees judged ready for promotions and consistently gave Payan poor performance reviews based on the review's subjective criteria, but Payan overperformed on its objective criteria, scoring at 106% on his goals. Payan was eventually put on a management performance improvement process and transferred. Payan said the new supervisor harassed him, derided him for his inability to speak Spanish, indicated that Payan had “integrity issues,” and corrected his pronouncement of Hispanic surnames. Payan sued UPS, alleging race and national origin discrimination.
- The district court granted summary judgment to UPS on all of Payan’s claims and, on appeal, the 10th Circuit agreed. The court was careful to note that that Martinez's race and national origin did not preclude him from engaging in race discrimination against another Hispanic employee. But, the court said, the record indicated that Martinez was not hostile to other Hispanic employees, which undercut Payan’s claim. Additionally Payan’s argument relied heavily on the fact that Martinez disliked him because he did not speak Spanish. The law provides no special protection for discrimination based on one’s poor grasp of a particular language, the court said. The court also said that Payan’s claims failed because the alleged hostility was not severe enough to meet the legal standard to create a hostile work environment.
In finding that Martinez's actions didn't rise to the level of actionable harassment, the court noted that Title VII does not establish "a general civility code" for the workplace and that "the run-of-the-mill boorish, juvenile or annoying behavior that is not uncommon in American workplaces is not the stuff of a Title VII hostile work environment claim."
Still, employers hoping to avoid having to defend such claims may want to focus on training for managers and supervisors. Experts say harassment based on language is increasingly leading to lawsuits — albeit often when managers want employees to speak English at work. But manager training is an important aspect of preventing discrimination and harassment claims. Part of that training can include ways to reduce the impact of bias at work. And while some say that bias can never be truly erased, workers can be taught ways to ameliorate its impact, taking time to listen and thinking before acting.