Question:

I am a woman of Asian descent with a very traditional name that can be difficult for native English-speakers to pronounce. My supervisor at work keeps referring to me as “Linda” and has suggested over and over that a more “Western” name will be more acceptable to our clientele, and will be easier for everyone at the office to pronounce. I have asked my supervisor repeatedly not to call me “Linda,” but he insists. I realize that my name is challenging, but I feel like my supervisor should at least make the effort to say it correctly, and should not be insisting that I use a different name at work. Am I wrong about this?

Answer:

No, you are not wrong. If your supervisor continues to insist on calling you by a name other than your given, racially identifiable name, you potentially have a claim against your employer for racial discrimination.

Despite what many people may think, racial discrimination need not be based on physical or genetically determined characteristics such as skin color or overall appearance. Federal law (42 U.S.C. §1981, or “Section 1981”) and California law (Government Code §12940) prohibit employment discrimination based on race or ethnicity. These laws are intended to protect all identifiable classes of people who are subjected to intentional discrimination because of their ancestry or ethnic characteristics, regardless of whether those characteristics are physical in nature.

A group’s ethnic characteristics encompass more than just its members’ skin color and physical traits, and names are widely recognized as a proxy for race and ethnicity. As such, names are protected under Section 1981 because they can serve as an indicator of someone’s race or ethnicity, and therefore have the potential to serve as a basis for unlawful discrimination.

You may have what is known as a “hostile work environment” claim. In order to prevail on such a claim, the allegedly discriminatory conduct must be so frequent and pervasive that an objectively hostile and/or abusive work environment is created. In other words, random or isolated acts that appear discriminatory are often not sufficient to warrant a finding of a hostile work environment. However, repeated and frequent behavior—such as your supervisor’s insistence on calling you “Linda” and his continual suggestions that you “Westernize” your name—may warrant such a finding. If you feel that your supervisor’s behavior has been so serious that it has altered the conditions of your employment and has created an atmosphere that would be racially hostile to a reasonable person of Asian descent, you may very well have a claim against your supervisor for racial discrimination that has resulted in a hostile workplace.

Your first course of action should be to take advantage of any complaint or grievance procedure that your employer has in place. This may involve speaking with an alternate supervisor about the problem, or perhaps discussing the matter with someone in your company’s Human Resources department. Your employer may be unaware that your supervisor insists on calling you “Linda,” or that you object to this conduct. Most employers have a specific set of guidelines that are intended to address employee complaints about things like discrimination and harassment. If your employer has such a policy, it is probably described in detail in your company’s employee handbook. Reporting the problem will allow your employer to take action on your behalf, and may even resolve the issue completely.

If your employer fails to address your concerns once you have filed a grievance or made a formal complaint, you may wish to proceed with a legal action. If you have a viable claim against your supervisor, then you may also be able to make a claim against your employer. In California, employers are strictly liable for the discriminatory conduct of their supervisors. In other words, an employer cannot defend itself against a discrimination claim if one of its supervisors has in fact been discriminating against its other employees. The theory is essentially that your supervisor is acting within the scope of his employment while engaging in discriminatory conduct, and that your employer is therefore vicariously liable for that behavior. So even though it is your supervisor who insists on calling you “Linda,” your employer may be found liable for the injury that you have suffered as a result.
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