I’m sitting on a complaint from one of my employees, an Alaska Native woman. In a recent staff meeting, a coworker muttered “Go back to where you came from” to her when she made a statement he didn’t like. Apparently he’s done this several times and she decided she couldn’t take it anymore and needed to speak up. When she asked him in a loud voice, “What did you say?” he repeated that if she didn’t like things here, she could go back to the village where she came from and see how she liked it better there.
Her complaint states that he’s said things like this many times to her, including that as an Alaska Native she “gets everything for free.” She notes that while her father and grandparents still live in a village in Western Alaska, she was born right here in Anchorage, where she and her mom and brother live.
I did reach out to the man she complained about. He got immediately defensive and angry and said, “If our president can say it, I can too.” I feel hamstrung as he makes an effective argument that these kinds of statements are ones spoken at all levels including by our leaders. I don’t know at this point what to do.
Apologize to her for the disrespect she’s experienced in your company and then investigate the other statements he has made. If they’re directed at her because she’s Alaska Native or toward others of different races, cultures and national origins, he needs to stop.
His “the president says things like this” reminds me of a 5-year-old arguing that “other kids get to do this, so I do to.” So what? That doesn’t make it right and you can’t let a phony defense stop you. President Trump doesn’t work for you; these employees do. That gives you the responsibility to handle it, as employers have liability when employees make xenophobic comments to or about each other.
If he’s made the two comments your complainant alleges, they give evidence of discrimination or harassment based on national origin, race or color, all of which are protected categories under the 1964 Civil Rights Act. The Equal Employment Opportunity Commission specifically cites “Go back to where you came from” as a remark that may constitute unlawful harassment based on national origin.
Here’s what the EEOC website states: “Examples of potentially unlawful conduct include insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, ‘Go back to where you came from,’ whether made by supervisors or by coworkers. Ethnic slurs and other verbal or physical conduct because of nationality are illegal if they are severe or pervasive and create an intimidating, hostile or offensive working environment, interfere with work performance, or negatively affect job opportunities.”
Further, courts in multiple jurisdictions have ruled that phrases such as “go back to where you came from” might convince a jury that a hostile work environment exists. As one example, in EEOC v. WC&M Enterprise, Inc., the EEOC charged a car dealership with allowing a salesman born in India to be harassed. His coworkers told him, “Why don’t you just go back where you came from…?” His manager said, “This is America. That’s the way things work over here. This is not the Islamic country where you come from.”
The court concluded that the “go back” comment combined with other remarks was sufficient to allow a jury to determine that the Indian employee experienced harassment based on national origin. In Brewster v. City of Poughkeepsie, the court ruled that an alleged “go back” comment directed at an employee of Cuban descent was sufficient to show negative animus based on national origin.
Some courts view the “go back” comment different. In an Eight Circuit case, Abdel-Ghani v. Target Corp., the court ruled that while the “go back” comment was morally repulsive, it was neutral in terms of national origin and didn’t interfere with the employee’s work performance.
Finally, if your employee reads this, please let her know she can accurately say, “My parents, grandparents and I actually come from here. Your family migrated here from Europe. How about you going back?”