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Breakdowns In Communication Can Bring Great Costs

Published:  January 17, 2018

Most people are guilty of speaking without thinking from time to time. However, the words you use to communicate with applicants and employees can have major ramifications on you and your business. Recently, the Massachusetts Commission Against Discrimination issued a ruling that highlights the importance of communicating clearly and thoughtfully, particularly when addressing a sensitive subject. In Brune v. Martin Group, Inc., the Commission determined that a prospective employer unlawfully discriminated against an applicant, a Syrian-born U.S. citizen, by rescinding an offer of employment after discovering that the applicant had not disclosed changing his name more than a decade earlier.

In this case, the Complainant, Jean Brune, was a Muslim man born in Syria to a Syrian father and Lebanese mother. The Complainant moved to the United States at a young age. Prior to 2002, Complainant was named Abdulnasser Mustafa Majzoub. Following the September 11, 2001 terrorist attacks, Complainant (then Mr. Mustafa Majzoub) decide to become a naturalized U.S. Citizen. During this time, he decided to legally change his name to Jean Francois Brune because he felt there was an atmosphere of hostility towards individuals with Arabic and Muslim sounding names. Thirteen years later, Complainant applied for a job as an administrative assistant and accounting clerk with the Respondent-employer.

The application form asked the applicant to “list any other name by which you have been known which may be necessary to allow us to confirm your work and education record … for example a change of name.” Complainant testified that he interpreted the form literally and understood the question to mean that he only needed to provide the information if it was necessary for the employer to confirm his education and employment history. Complainant did not list his birth name or indicate that he had a name change because all of his school transcripts and employment records were under his current name. Complainant’s religion, ethnic background and national origin were not discussed during the hiring process. Subsequently, Complainant was formally offered the job, which was not explicitly conditioned on verification of his credentials. The Respondent’s Executive Vice President (the “EVP”) had a “very favorable” impression of Complainant, and believed he would be a “great hire.”

After offering Complainant the job, the Respondent’s Executive Vice President ("EVP") did a Google search on the Complainant, and discovered that he had changed his name from Abdulnasser Mustafa Majzoub. A few days before he was scheduled to start work, Complainant was contacted by the EVP. The EVP stated that the offer of employment was rescinded because he had not disclosed his prior name on the application and that this was considered a falsification or misrepresentation. Complainant attempted to explain that he understood the question to only ask for the information if it was necessary to verify his education and employment history. But Respondent still rescinded the offer.

During Public Hearing, the Respondent asserted that it believed that Complainant was “untrustworthy” because of information that was uncovered during an internet search. In fact, the Respondent argued that it discovered that Complainant had unpaid debt in the state. However, the Respondent could not produce any actual documentation. In fact, Complainant had been a defendant in a small claims action, and the judgment had been fully satisfied several years earlier. The Respondent also argued that it discovered that reference listed as a personal friend was a former roommate. The Respondent argued that this lead them to believe it was possibly a sibling. These reasons technically satisfy the burden of asserting a legitimate, nondiscriminatory reason for an adverse employment action. However, the Commission did not find this testimony credible because the EVP did not tell Complainant that these were the reason for rescinding the employment offer. The only reason she gave Complainant was the failure to disclose his prior name. Therefore, the Commission ultimately determined that his prior name was her “primary concern.”

For the sake of argument, it is unimportant whether or not the Respondent’s concerns were motivated by discriminatory animus. Let’s assume that Respondent’s arguments were honest and they did not have unlawful motives. This scenario presents several instances where clear and thoughtful communication would have allowed the Respondent to prevent legal liability. The application form should have been worded clearer, or Respondent should have been mindful that it could be taken literally. Respondent could have explicitly communicated that the offer of employment was conditioned upon verification of the information provided on the application, and subsequently inquired into why the information wasn’t provided. Alternately, when Complainant offered an explanation, Respondent could have thoughtfully considered whether the omission was based on a good-faith misunderstanding. Alternately, the EVP could have explained that her concern was not the name at issue, but two or three pieces of inconsistent information that caused Respondent to question the veracity of the information provided.

At several points during this process, Respondent could have used clear and thoughtful communication to prevent the inference that their decision was based on discriminatory animus against Arab or Muslim people. All of this highlights the importance of clear and thoughtful communication in the workplace. A vague phrase or poorly chosen word can create misunderstandings and misperceptions. In some cases, these can create an inference of unlawful motives, even if there are none.

If you have questions about the topics listed here, or any other Labor and Employment Law matters, please contact the attorneys at Royal, P.C. 

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