Is it technically race discrimination under Title VII of the Civil Rights Act of 1964 if you terminate an Assyrian employee because you think he is an Arab? An Illinois district court recently faced that question. 
Less than courteous
Afram Boutros, an Assyrian of Lebanese descent, went to work for Avis Rent A Car in 2002 as a courtesy bus driver at O’Hare International Airport. He claims that in 2005, he notified Avis that he was going on leave to join the U.S. Army. His military service ended in 2006, and he attempted to return to work at Avis in accordance with his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Avis initially denied his request, claiming he had provided insufficient notice of his leave and thus wasn’t protected by USERRA. Boutros sued, and the case was resolved when Avis offered him his old job back. In May 2007, he returned to Avis as a courtesy bus driver.
Upon his return, Boutros began to have problems at work. He claimed the company didn’t deduct union dues from his paycheck and send them to the union. He also claimed the company didn’t get him properly reenrolled in its health insurance plan. In addition, he alleged that Avis was late multiple times in generating a paycheck for him. And he claimed that his Avis ID swipe card didn’t work, which made him unable to accurately report his hours worked.
Adding further to his alleged misery, Boutros had a difficult relationship with his supervisor, Rolando Trujillo. He claimed Trujillo made derogatory remarks about “Arabs” after he informed him that he was from Lebanon. Boutros is ethnically Assyrian―not Arab. He claimed Trujillo asked him if his relatives were on the planes that crashed into the Twin Towers on September 11. He also claimed Trujillo directed him to take lunch and smoke breaks away from his white coworkers. Most troubling, Boutros alleged that Trujillo physically assaulted him by grabbing him from behind and squeezing him, thus causing back and kidney injuries.
Driven to sue
Boutros claimed that he complained to Avis about his treatment in early 2008. He said he called the Avis employee hotline, but to no avail. In fact, he alleged that e-mails from Avis management described his complaints as “unbelievable,” accused him of “fraud, dishonesty, defamation of character,” and declared that “Afram needs to be held accountable once and for all.”
Avis terminated Boutros for an incident that allegedly occurred in May 2008. The company accused him of improperly operating his courtesy vehicle and causing a fire extinguisher to discharge inside the bus. Boutros claimed that he informed Trujillo of the incident and offered to clean it himself, which Trujillo approved. Boutros claimed, however, that the fumes from the discharge caused him to vomit blood and made it difficult for him to breathe. He was transported to a local hospital. Avis countered that he was observed smoking a cigarette shortly after the incident.
On May 29, 2008, an Avis manager sent an e-mail to other managers stating, “AGAIN, THIS IS FRAUDULENT! LET ME KNOW IF WE CAN RID OURSELVES OF HIM ONCE AND FOR ALL!” On June 8, Avis suspended Boutros, claiming that it believed Trujillo and the story about smoking a cigarette over his version of events. Boutros claimed that during his suspension meeting, a manager said that “Arabs are all fraudulent, and you are also fraudulent.”
Boutros was terminated effective September 30, 2008. He later sued Avis for race discrimination and hostile work environment under Title VII. Avis asked the judge to find in its favor before trial.
Can’t dent his case
One of Avis’ arguments was that Boutros is Assyrian and not actually an Arab, so it couldn’t have discriminated against him because he’s Arab. The court, however, ruled the misunderstanding didn’t matter: “This argument is as offensive as it is incorrect.” The court observed that an employer can’t wriggle off the hook just because it used the wrong racial stereotype to discriminate against an employee.
The court also found enough evidence to send Boutros’ hostile work environment allegation to a jury. Avis was responsible for the words and actions of Trujillo, its supervisor. Trujillo’s alleged behavior― the 9/11 remark, the segregated smoke breaks, and the physical contact―were enough to make out an actionable claim for hostile work environment. Thus, a jury will now decide whether Boutros’ claims have merit. Boutros v. Avis Rent A Car System LLC, Case No. 10- cv-8196 (N.D. Ill., July 24, 2013).
Ask for directions
Employers often bemoan how easy it is for an employee to make out a viable discrimination case, and this decision drives that point home. That said, Avis’ local management did themselves no favors by PUTTING THEIR THOUGHTS IN AN E-MAIL IN ALL CAPS. Draft every e-mail as if you anticipate seeing it someday on the front page of the New York Times. And at the risk of sounding like a broken record, invest in supervisory training. Try not to be the employer whose supervisor asks an employee about his ethnic background and then makes fun of it. That makes for a fast lane to the courthouse.
Brian J. Kurtz is a partner with Ford Harrison LLP in Chicago and an editor of Illinois Employment Law Letter. He may be contacted at bkurtz@fordharrison.com.