CASE 8.4 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION V. WC&M ENTERPRISES, INC. 496 F.3d 393 (5th Cir. 2007) [Mohommed Rafiq was born in India and was a practicing believe what you believe?" and mocking Rafiq's religious Muslim. He was a car salesman at WC&M Enterprises' dietary restrictions and his need to pray during the workday. Honda dealership in Conroe, Texas. After the September They also often referred to Rafiq as an "Arab," even though 11, 2001, terrorist attacks, Rafiq began to be subjected to Rafiq told them on numerous occasions that he was from ongoing harassment based on his religion and national origin India. This harassment continued through the end of his by his managers and coworkers. When Rafiq arrived at work employment. for his afternoon shift on 9/11, a number of his coworkers On October 16, 2002, Rafiq got into a dispute with his and managers, including Matthew Kiene (a coworker), manager, Swigart, after being told that it was mandatory for Kevin Argabrite (a finance manager), Jerry Swigart (Rafiq's all employees to attend a United Way meeting. When Rafiq direct supervisor), and Richard Burgoon (the general questioned what, if any, connection there was between the manager of the dealership), were watching television United Way and his job, Swigart said, "This is America. coverage of the attacks. Upon seeing Rafiq, Kiene called That's the way things work over here. This is not the out, "Hey, there's Mohommed," and Argabrite said, "Where Islamic country where you come from." After the confron have you been?" in a mocking way, at which point everyone tation, Swigart issued Rafiq a written warning, which stated began to laugh. Rafiq inferred from these comments that that Rafiq "was acting like a Muslim extremist" and that the supervisors and colleagues were implying that he had he could not work with Rafiq because of his "militant participated in the terrorist attacks. After the U.S. began stance." On October 26, 2002, Argabrite "banged" on military action against Afghanistan, his coworkers and some the partition separating Rafiq's office space from the sales managers began calling Rafiq "Taliban." Rafiq repeatedly floor; Argabrite did this to try to startle Rafiq whenever he asked them to stop calling him "Taliban," to no avail. He walked by his office. This time, however, Rafiq responded also complained a number of times to the managers without by banging on the partition himself and saying, "Don't any real success. do that." Argabrite then confronted Rafiq and told Rafiq Coworkers and some managers also ridiculed and that he was a manager, so Rafiq could not tell him what harassed Rafiq in other ways, such as asking him, "Why to do. Rafiq later complained to Burgoon about Argabrite's don't you just go back where you came from since you continual harassment.Two days later, Rafiq was fired. Rafiq filed a charge of a viable Title VII claim as well as a continuous pattern of discrimination with the EEOC, and the EEOC filed suit much less severe incidents of harassment.... against the employer, alleging that WC&M subjected Rafiq Here, the district court held that even if Rafiq could to a hostile work environment on the basis of his religion prove that any harassment occurred, "he has not shown and national origin, in violation of Title VII. The district that it was so severe that it kept him from doing his job." court granted summary judgment to the employer, stating In so holding, the district court applied an incorrect legal that the EEOC could not establish that Rafiq was harassed standard. Whether Rafiq lost sales as a result of the alleged on the basis of his national origin, that the EEOC did not harassment is certainly relevant to his hostile work environ- establish the existence of severe and pervasive harassment, ment claim; but it is not, by itself, dispositive. The district and the EEOC had not shown that Rafiq's emotional court erred in concluding otherwise. distress or mental anguish from the harassment was so severe Applying the totality of the circumstances test, we that it interrupted his daily life. The EEOC appealed to the conclude that the EEOC has presented sufficient evidence U.S. Court of Appeals for the Fifth Circuit.] to create an issue of fact as to whether the harassment that Rafiq suffered was so severe or pervasive as to alter a condi- Dennis, Circuit Judge tion of his employment. The evidence showed that Rafiq In this case involving allegations of a hostile work environ- was subjected to verbal harassment on a regular basis for a ment, the Equal Employment Opportunity Commission period of approximately one year. During that time, Rafiq ("EEOC") appeals the district court's decision to enter was constantly called "Taliban" and referred to as an "Arab" summary judgment in favor of the defendant-appellee, by Kiene and Argabrite, who also mocked his diet and WC&M Enterprises, Inc.... prayer rituals. Moreover, Rafiq was sporadically subjected to ... the district court made two findings that essentially additional incidents of harassment ... disposed of the EEOC's hostile work environment claim on Although no single incident of harassment is likely the merits: (1) that the EEOC had not shown that Rafiq lost sufficient to establish severe or pervasive harassment, when sales as a result of the alleged harassment that he suffered; considered together and viewed in the light most favorable and (2) that the EEOC could not bring a claim based to the EEOC, the evidence shows a long-term pattern of on Rafiq's national origin because none of the harassing ridicule sufficient to establish a claim under Title VII. ... comments specifically referred to the fact that Rafiq was In addition, the evidence is sufficient to show that the from India. The EEOC argues that the district court erred harassment Rafiq suffered was based on his religion and in each respect.... national origin. The Supreme Court has emphasized that Title VII's Indeed, the EEOC's guidelines on discrimination prohibition "is not limited to 'economic' or 'tangible' define "discrimination based on national origin" broadly, discrimination." Rather, "[when the workplace is perme- to include acts of discrimination undertaken "because an ated with 'discriminatory intimidation, ridicule, and insult' individual has the physical, cultural or linguistic character- that is 'sufficiently severe or pervasive to alter the condi- istics of a national origin group." Nothing in the guidelines tions of the victim's employment and create an abusive requires that the discrimination be based on the victim'sworking environment,' Title VII is violated." [Harris v. actual national origin. The EEOC's final guidelines make Forklift Sys.] ... this point clear: For harassment to be sufficiently severe or pervasive to In order to have a claim of national origin discrimination alter the conditions of the victim's employment, the conduct complained of must be both objectively and subjectively under Title VII, it is not necessary to show that the offensive.... As the Supreme Court stated, "even without alleged discriminator knew the particular national regard to ... tangible effects, the very fact that the discrimi origin group to which the complainant belonged.... [I]t is enough to show that the complainant was natory conduct was so severe or pervasive that it created a treated differently because of his or her foreign accent, work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's appearance, or physical characteristics.... broad rule of workplace equality." ... In this case, the evidence that the EEOC presented Under the totality of the circumstances test, a single inci- supports its claim that Rafiq was harassed based on his dent of harassment, if sufficiently severe, could give rise to national origin. Indeed, several of the challenged statementsrefer to national origin generally (even though they do not accurately describe Raq's actual country of origin): (1) Kiene's comment to Rafiq, \"Why don't you just go back where you came from since you believe what you believe\"; (2) Swigart's statement. \"This is America. That's the way things work over here. This is not the Islamic country where you come from\"; and (3) Kiene's and Argabrite's practice of referring to Raq as \"Taliban\" and calling him an \"Arab.'I Accordingly, we conclude that the EEOC has submitted sufcient evidence to support its ciaim that Raq was subjected to a hostile work environment both on the basis of religion and on the basis ofnational origin. Rafiq testified at his deposition that the alleged harassment caused problems with his family life that led him to seek counseling from several mosques, that he had difculty sleeping, lost 30 Pounds, and suffered gastro- intestinal problems. Although Ra'q equivocated about whether his gastrointestinal problems were attributable to the harassment, the record evidence is sufficient to show that the harassment caused so me discernible injury to his mental state even when those symptoms are not considered. Accordingly, the district court erred in concluding that the EEOC could not recover For any mental anguish that Rafiq suffered. . . . [Wle reverse the district court's grant of summary judgment in favor of the defendant . . . and remand this matter to the district court for proceedings consistent with this opinion. Reversed and Remanded. Case Questions I. On what basis was Rafiq being harassed? What evidence supports his claim that the harassment was based on national origin and religion? 2. How did the harassing conduct here affect Raq? Must Raq show that the harassment caused him to lose sales or otherwise affected his work performance? Explain. 3. What is an employer's obligation under Title VII to prevent workplace harassment based on race, color, sex. national origin, or religion? What had the employer done in this case to stop the harassment