A Vietnamese-American woman who says attorneys at a Virginia law firm insinuated she cooked up meals from dogs and cats has filed an employment lawsuit that may test the boundary between office banter and actionable discrimination on the basis of national origin.

Robert Eicher

Hanh Nguyen Allgood's $950,000 suit has gotten a lot of attention because of her allegations that Williams Mullen partner Robert E. Eicher sexually harassed her while she worked for the firm as records manager. In one incident, he allegedly pressed his genital area against her thigh and, when she pushed him away, laughingly produced a cucumber from his pants pocket.

But the complaint raises more novel legal issues by alleging Eicher and another attorney, Douglas M. Nabhan, harassed Allgood because she is Vietnamese. “The population of dogs and cats in your town dropped dramatically last night,” Nabhan would allegedly joke when referring to meals she cooked for the firm's annual holiday parties.

Eicher “made offensive ethnic slurs and comments,” the suit says, asking Allgood whether she ate “dog fricassee,” “rice paddies” or “rats” for dinner, referring to her as “black pajama” (the uniform of the Viet Cong), and saying “that's why we lost the war” after she spoke.

In addition, a supervisor who is not identified in the suit allegedly told her “to train someone else to do the training” because “people may have problems with your accent.”

“Another firm trainer has a British accent,” Allgood says.

Title VII of the Civil Rights Act prohibits workplace discrimination based on “race, color, religion, sex, or national origin,” but courts have found in relatively few cases that insults and slurs about an employee's nationality rose to the level of severity necessary to state a claim of harassment.

Under U.S. Supreme Court precedent, “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Systems, 510 U.S. 17 (1993).

In the recent case of a Navajo Indian who alleged supervisors asked him to do “rain dances” on hot days and co-workers called him “queer” when he wore his hair in braids, the 10th U.S. Circuit Court of Appeals found the ridicule was not “sufficiently severe or pervasive” to consitute harassment. Denetclaw v. Thoutt Brothers, 287 Fed.App'x 17 (2008).

A case “where there were only a few verbal utterances made in the context of office banter” is not actionable, the 7th Circuit noted in Cerros v. Steel Technologies, 288 F.3d 1040 (2002).

Douglas Nabhan

The alleged utterances of Eicher and Nabhan, while obviously crass and offensive, might not in and of themselves be enough to meet the Harris standard. And Williams Mullen could argue that the comment about Allgood's accent expressed a reasonable concern about her ability to communicate with other employees.

But Allgood alleges the jokes about her cooking began after she reported Eicher's alleged sexual abuse to Thomas Frantz, the president of Williams Mullen. “Contrary to Mr. Frantz's promises” that things would get better, the suit says, “her supervisors treated Allgood worse than ever.”

If that timeline is correct, Eicher and Nabhan retaliated against Allgood and their jokes were far from idle office banter.

Allgood worked for Williams Mullen from July 1989 to March 2007. She is seeking $300,000 in compensatory damages, $300,000 for Title VII violations, and $350,000 in punitive damages.

By Matthew Heller
11/17/09