“Sand Nigger” and Other Comments Support Iraqi Muslim’s Hostile Work Environment Claim Against Army

In Al-Kaysey v. Engility Corp., No. 11-cv-6318, 2016 WL 5349751 (E.D.N.Y. Sept. 23, 2016), the court held that plaintiff – a U.S. Citizen of Iraqi descent and practicing Muslim who was employed as a linguist – plausibly alleged (in a proposed amended complaint) a claim of hostile work environment against defendants, including the Army.

(This decision address many issues, including the “national security exception” to Title VII, but here I’ll focus on plaintiff’s hostile work environment claim.)

Plaintiff alleged, among other things, that special forces sergeants

made repeated derogatory remarks to Al-Kaysey. In particular, [they] called Al-Kaysey a “sand nigger,” “camel jockey,” “towel head,” and “inferior” on multiple occasions, and [one] said that he did not respect Al-Kaysey because Iraqis like him were “sand niggers,” “monkeys,” and “people with no pride.”

The court summarized the law: “In order to establish a hostile work environment claim, the plaintiff must show [1] that the harassment was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer.”

As to the first element, the court explained:

The conduct alleged here clearly qualifies as objectively hostile. It is well-settled that “even a single act can meet the threshold [of severity and pervasiveness] if, by itself, it can and does work a transformation of the plaintiff’s workplace.” Alfano, 294 F.3d at 374. And “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” La Grande v. DeCrescente Distrib. Co., Inc. 370 Fed.Appx. 206, 210 (2d Cir. 2010). Al-Kaysey alleges that he was exposed to repeated slurs, epithets, and derogatory comments about Muslims, Iraqis, and others starting in March 2010 when Clarke and Caskey were assigned to ODA 5224, and that the comments were directed specifically at Al-Kaysey from May 2010 until his termination in August 2010. (Am. Compl. ¶¶ 12–13, 15, 17–19, 22–24, 34, 42.) The comments included, but were not limited to, calling Al-Kaysey a “sand nigger,” “camel jockey,” “towel head,” and “monkey.” (See id. ¶¶ 12, 18, 42.) Al-Kaysey’s supervisors used similar epithets to refer to Iraqi civilians and Iraqi Army Officers (Al-Kaysey is a United States citizen of Iraqi descent), as well as a Sudanese translator, all in plaintiff’s presence. (See id. ¶¶ 18, 22–24.) They also referred to Islam (Al-Kaysey is a practicing Muslim) as a violent religion and a waste of time, and said it is practiced by people who are “time bombs.” (See id. ¶¶ 15, 17.) The amended complaint further states that the examples given are not exhaustive, and that the comments were directed at Al-Kaysey and at others in Al-Kaysey’s presence. These comments as alleged clearly constitute a pattern of conduct that occurred in a variety of contexts toward people in various roles, and not simply a few isolated incidents. Furthermore, Al-Kaysey has alleged that he suffered emotional distress and harm as a result of the harassment. (See id. ¶¶ 26, 60.) The alleged conduct is therefore frequent, unambiguously discriminatory, and humiliating, and it easily constitutes objective hostility.

As to the second element, the court – citing the Supreme Court’s decision in Vance v. Ball State Univ., 133 S.Ct. 2434, 2441 (2013) – explained that “[w]here the harassing employees are supervisors of a plaintiff, an employer may be held vicariously liable for the supervisors’ creation of a hostile work environment.”

Plaintiff met this standard: “Given that Al-Kaysey alleges that Army personnel made the comments in the presence of Army commanders and that the Army knew or should have known about their discriminatory conduct, Al-Kaysey has plausibly alleged the Army’s liability under a joint-employer theory as well. Al-Kaysey has therefore demonstrated a specific basis for imputing the objectionable conduct to the Army.”

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