Donald Trump will win (a Title VII lawsuit)

This is an entertainment-centered blog and therefore as good a place as any to discuss Donald Trump. By now you are surely aware of the nuanced approach Trump took toward U.S.-Mexico immigration policy in his presidential bid announcementDonald Trump

“When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

If you are of Mexican national origin, that stings. If you are of Mexican national origin and are employed at Trump Plaza, or at the Trump Taj Mahal, or work on the Miss USA Pageant broadcast, you may be asking yourself whether Trump’s remarks could give rise to a discrimination or harassment lawsuit under Title VII of the Civil Rights Act of 1964.

The answer is probably not. Hostile work environment claims and direct evidence discrimination cases rely on proof of unlawful motivation by the decisionmaker. In a 2006 case out of the 11th Circuit, the president of a black college made public statements that he wanted the race of the institution’s workforce to reflect the student body. A terminated white employee sued but was unsuccessful because the president had no involvement in the termination decision.  Unless Trump himself goes all Apprentice on you and personally handles the termination, his role in the adverse action will be impossible to prove.

Courts generally require a causal and/or temporal link between the discriminatory statements and the adverse employment action. A plaintiff in a 2010 Illinois federal discrimination case failed to prove his prima facie case under Title VII because he could not tie his boss’s persistent use of the term “wetback” to an adverse employment action. Here, time will pass, Trump will say new outrageous things, and any causal link that may have existed will diminish.

So spout away, candidate Trump. I almost hope he wins. That first U.S.-Mexico summit will be must-see TV.