Does Title VII of the Civil Rights Act of 1964 cover claims of discrimination based on a perceived protected trait? Last week, the U.S. District Court for the District of Maryland answered “yes,” holding that a plaintiff’s Title VII and Maryland Fair Employment Practices Act claims of discrimination based upon perceived national origin are viable causes of action. Arsham v. Mayor & City Council of Balt. No. 1:14-cv-02158 (D. Md. February 12, 2015).
The case arose after an employee of Persian heritage was fired from her position with the Baltimore City Department of Public Works, where she was employed from 1988 until January 2014. The employee claimed that her new supervisor discriminated against her, in part, based on his perception that she“was a member of the ‘Parsee’ ethnic group,” a group for which the supervisor had previously expressed disdain.
The employee alleged that she was treated less favorably than her colleagues with respect to job title, requests for time off, and reporting structure. She also claimed that she was not invited to meetings and more closely monitored than other employees.
The City moved to dismiss the claim, arguing, in part, that neither Title VII nor Maryland law recognize a cause of action for discrimination based on “perceived national origin.” The City argued that Congress omitted “perceived” from Title VII and, if it wanted to outlaw discrimination based on perceived traits, it would have done so by using language similar to that in the Americans with Disabilities Act. Federal courts in Tennessee, Kansas, Ohio, North Carolina, California, Illinois, New York, and Georgia have relied upon the same reasoning. In an unpublished opinion, the Fourth Circuit affirmed dismissal of a perceived protected trait. El v. Max Daetwyler Corp., 451 F. App’x 257 (4th Cir. 2011) (unpublished). Because unpublished opinions are not binding precedent, the District Court was not bound by the opinion.
In contrast to these courts, the Third, Fifth, Ninth, and Eleventh Circuits, and federal courts in Illinois, Vermont, Virginia, and Nebraska have permitted such claims. Siding with these courts, the Court denied the City’s motion to dismiss. It relied on EEOC Guidance stating that Title VII does not require that the defendant knew the specific national origin to which the victim belonged. “The City presents a superficially logical, but fundamentally abhorrent, argument: Title VII does not protect an individual from discrimination based on the individual’s perceived national origin. . . . The obvious corollary of this argument is that it is lawful for an employer to discriminate against an individual based upon the employer’s mistaken perception of the individual’s actual national origin because only the latter is specifically outlawed as a basis for discrimination. A wrong guess, in other words, shields the employer from liability for discrimination that is no less injurious to the employee than if the employer guessed correctly regarding the employee’s national origin.”