“Misperception Discrimination”: What North Carolina Employers Need to Know

By Savannah Singletary

Assume that an employee is fired because her employer mistakenly believes she is of Middle Eastern descent. In fact, she is not. Should she be able to state a claim under Title VII? Courts are now divided about whether Title VII protects persons who are perceived to belong to a protected class, even if the employer is mistaken in that belief. While many jurisdictions allow misperception discrimination claims, others, like the Western District of North Carolina, do not.

Perceived Protected Traits in Title VII

Title VII purports to safeguard equality in seeking and retaining employment opportunities. Some courts conclude that to achieve that goal, an employer should face liability for discrimination based on a perception that an employee is a member of a protected class, although the employee is not actually in that class. However, unlike the ADA, which defines disability as being “perceived” to have an impairment, Title VII does not explicitly protect someone who is misperceived to be a member of a protected class. This apparent ambiguity has engendered disputes among jurisdictions.

Though Title VII includes no detailed description of its protected classes, the Supreme Court has chosen to read Title VII’s protections expansively. See McDonald v. Santa Fe Transportation Co., 472 U.S. 273 (1976). Courts that allow misperception discrimination claims acknowledge the broad applications of Title VII. Those jurisdictions recognize that discrimination can arise not only based on actual protected class membership, but also from an employer’s misperception of an individual’s membership in a protected class.

The “Arsham” Example

In 2015, the Maryland district court recognized a misperception discrimination claim under Title VII in Arsham v. Mayor & City Council of Baltimore, 85 F. Supp. 3d 841 (D. Md. 2015). Arsham was an employee in Baltimore’s Department of Public Works. She claimed that her supervisor treated her differently because he misperceived that she was Parsee, a lower Indian caste. In fact, she was not Indian at all—she was Persian.

The court found she had alleged a viable Title VII claim for national origin discrimination. In so concluding, the Maryland district court pointed to EEOC guidelines prohibiting national origin discrimination. The guidelines decry discrimination based on “physical, cultural or linguistic characteristics of a national origin group . . . [I]t is enough to show that the complainant was treated differently because of his or her foreign accent, appearance or physical characteristics.” Moreover, the court rejected the defendant’s position that “A wrong guess . . . shields the employer from liability for discrimination that is no less injurious to the employee than if the employer guessed correctly regarding the employee’s national origin.”

While a number of courts in other states recognize perceived-as discrimination claims (Michigan, Nebraska, Nevada, Illinois, North Dakota, California, and Washington to name a few), at least one court in North Carolina does not.

The “Max Daetwyler” Case

El v. Max Daetwyler Corp., No. 3:09-CV-415, 2011 WL 1769805 (W.D.N.C. 2011), aff’d, 451 F. App’x 257 (4th Cir. 2011), illustrates the Western District’s refusal to recognize misperception discrimination claims. In El, a pro se plaintiff contended he was terminated based in part on his employer’s misapprehension that he was Muslim. In granting the defendant’s motion to dismiss, the court explained that Title VII does not “contain an explicit provision for the protection of persons who are merely perceived to be part of a protected class.”

The court posited that Congress demonstrated through the ADA and Rehabilitation Act that it “knows how to enact legislation that protects persons who are wrongly perceived” to be a member of a protected class. The court dismissed the plaintiff’s Title VII claim based on religion because “he [could not have been] a member of a protected class absent some membership in a protected class.”

Despite the fact the Fourth Circuit affirmed the Western District, the District Court of Maryland later repudiated El. See United States EEOC v. MVM, Inc., 2018 U.S. Dist. LEXIS 81268 (D. Md. May 14, 2018).

While the Western District staunchly maintains that Title VII protections do not extend to persons discriminated against based on an erroneous perception of protected class membership, practitioners should be aware that other jurisdictions may allow the claim.