Case Study:
Kang v. U. Lim America, Inc. 296 F.3d 810 (9th Cir. 2002)
Kang is a U.S. citizen of Korean national origin working for a California corporation called U. Lim America, Inc. All of U. Lim America’s employees shared Korean heritage. Tae Jin Yoon was Kang’s supervisor. Yoon subjected Kang and other Korean workers to verbal and physical abuse and discriminatorily long work hours. The verbal abuse consisted of Yoon screaming at Kang for up to three hours a day and calling him “stupid,” “cripple,” “jerk,” “son of a bitch,” and “asshole.” The physical abuse consisted of striking Kang in the head with a metal ruler on approximately 20 occasions; kicking him in the shins; pulling his ears; throwing metal ashtrays, calculators, water bottles, and files at him; and forcing him to do jumping jacks. Kang began to cut back on the required overtime in order to spend time with his pregnant wife; Yoon fired him. Kang filed suit in California state court against U. Lim America and Yoon for national origin discrimination and harassment in violation of Title VII and the California Fair Employment and Housing Act. The district court granted summary judgment to U. Lim America and Yoon on all Kang’s causes of action. Kang appealed. The court of appeals reverses and finds in favor of the plaintiff Kang.
Browning, C.J.
To prevail on his harassment claim, Kang must show: (1) that he was subjected to verbal or physical conduct because of his national origin; (2) “that the conduct was unwelcome”; and (3) “that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive work environment.” Generally, a plaintiff alleging racial or national origin harassment would present facts showing that he was subjected to racial epithets in the workplace. Here, however, Kang alleged that he and other Korean workers were subjected to physical and verbal abuse because their supervisor viewed their national origin as superior. The form is unusual, but such stereotyping is an evil at which the statute is aimed. See Nichols v. Azteca Rest. Enters., Inc. (2001) (holding that a plaintiff proved harassment “because of sex” where he was harassed because he failed to conform to male stereotypes). Kang presented evidence that Yoon abused him because of Yoon’s stereotypical notions that Korean workers were better than the rest and Kang’s failure to live up to Yoon’s expectations. On numerous occasions, Yoon told Kang that he had to work harder because he was Korean; he contrasted Koreans with Mexicans and Americans who he said were not hard workers; and although U. Lim America employed 50–150 Mexican workers, Yoon did not subject any of them to physical abuse. This evidence created a genuine issue of material fact as to whether Yoon’s abuse and imposition of longer working hours was based on Kang’s national origin. Kang also presented evidence that the physical and verbal abuse and long working hours were in fact unwelcome. See Faragher v. City of Boca Raton (1998) (discussing the requirement that the victim perceive the environment as offensive). Kang’s evidence further showed that the verbal and physical abuse and discriminatory working hours created a work environment that was “objectively offensive . . . one that a reasonable person would find hostile or abusive.” Id. “The more outrageous the conduct, the less frequent [sic] must it occur to make a workplace hostile.” After considering all the circumstances including the frequency and severity of the conduct, the fact that the abuse was frequently “physically threatening or humiliating” and that it unreasonably interfered with Kang’s work performance, we conclude that Kang presented evidence sufficient to survive summary judgment that Yoon subjected Kang to an objectively hostile environment.
Q1. Do you agree that harassment because a worker is viewed as superior is as unethical or wrongful as harassment based on a perception that someone is inferior?
Q2. Does the conduct described seem sufficiently severe and pervasive as to constitute harassment under the Faragher definition? How would you decide if you were on the jury?
Q3. Can you make any argument that the definition of sexual harassment and of harassment based on national origin should be different?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.