The California Court of Appeal has again held that trial courts should generally not grant summary judgments on issues of “hostile work environment.” In Rehmani v. Ericsson, Inc. [Mar. 29, 2012 2012 DJDAR 4177] the Court reviewed a trial court’s granting of summary judgment for the employer on discrimination, harassment, and “failure to adequately investigate” claims.
The workplace issues centered round a Pakistani worker, who claimed his Indian supervisor and co-workers made disparaging remarks and humiliating remarks of his “terrorist” activities, that they were frequently rude and insulting, and that they failed to provide him adequate work support to allow him to do his work. He alleged the Indians acted from bias based on his national origin and religion.
The employer countered with evidence in the summary judgment motion that the remarks did not occur, that if they occurred, they were few and isolated. Also, the employer presented evidence that the remarks or actions were by non-supervisory co-employees, and that the employee did not clearly or timely report the incidents to Human Resources. Finally, the employer presented evidence that the employee did not use the words “discrimination” or “harassment” when reporting his co-employees’ conduct, nor did he complain that the co-workers’ treatment was due to his being “Pakistani” or “Muslim.”
The employee offered evidence that he complained to his supervisor repeatedly about his co-employees’ behaviors, although admitting he did not use words indicating “discrimination.” He presented evidence that the employer seemed generally to favor East Indian co-workers in matters of hiring, salary increases and promotion. The Court of Appeal, sua sponte, without evidence, noted generally in its opinion, that there are well-known tensions between India and Pakistan that would explain the idea that Plaintiff, as a Pakistani Muslim, would be targeted by the East Indians with remarks of his alleged terrorist tendencies.
The court followed Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263-264, declaring that summary judgment is generally disfavored to decide issues of “hostile work environment.” The Court held that Rehmani’s general complaints were sufficient to trigger an investigation into possible discrimination and harassment on the basis of religion and national origin.
Implications of the Rehmani v. Ericsson decision: Obviously, the Nazir decision is supported and followed, and this case adds to the weight of that precedent that summary judgment is not the time or place to decide issues of fact on “hostile work environment issues.” More significantly, this decision tracks a familiar pattern in these cases: a few hostile or “stray” remarks over a long period of time, made by persons who are not managers or decision makers, with indications of rudeness and poor interpersonal relations with co-workers, but not clear discrimination, and an H.R. investigation into those complaints without findings of discrimination or harassment. Likewise, it is fairly common that the complaining employee does not use the words “hostile work environment” or “harassment” or “discrimination” or any one of the usual “protected classes” that trigger a clear duty to investigate.
Employee attorneys must vigorously fight summary judgment motions with the Nazir and Rehmani decisions. Further, they must gather as much evidence as possible to make the case that a competent H.R. person would take the initiative to probe for evidence of harassment and discrimination even if not presented with those specific words by the employee.
This case also suggests that where there are groups of employees of different national origin known to be hostile to one another, the employee attorney should request formal judicial notice, and if indicated, obtain expert sociological/cultural opinion on how these groups generally view one another, either consciously or subconsciously.
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