Summary Judgment in ‘Hostile Work Environment’ Cases Not Favored.

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.4^th 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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Freedom of Religion is Violated by Mandated Contraception Insurance Coverage

The following is a reprint of an OpEd piece I submitted to the Los Angeles Daily Journal.  The Article was published in the "Perspective" Section on 3/20/2012:  

Constitutional rights can collide, and when they do, of course courts must reconcile contending interests.  But in the case of contraceptive coverage, the collision is not between constitutional “equals.”  The tension is between the political agenda of the Obama administration to cater to the liberal female vote, and the First Amendment right of freedom of religion.

The U.S. Dept of Health & Human Services has mandated that a religious organization provide its employees with coverage for contraception even when that religious organization finds contraception fundamentally inconsistent with its religious tenets.  Even if a carrier provides the contraceptive coverage without cost to the religious employer, that does not address the essential question of whether the coverage can be forced upon an employer for a purpose it finds morally unacceptable.

It is not clear to me what constitutional right the employee beneficiaries of such medical plans actually assert against the contending religious freedom of the organizations that employ them.  The argument seems to be one addressed to the rights of women per se to have insurance pay for their contraception.  However that "right" is framed, it is not a constitutional right.  The government may be restrained from interfering with the use of contraception, but it is not empowered by the Constitution to make it more readily available.

The Catholic Church has long concluded in its teachings that human conception is a sacred event, and humans are to accord life at conception the greatest dignity and protection because such human life bears the very image of God.  This is a critical position for the church as it struggles to assert a “culture of life” in opposition to practices that it views to be part of a “culture of death.”  This point is not trivial. 

The fact is that most of the social functions a church performs are not in the nature of liturgical ritual.  Much of the social good of churches over the decades in American society do not appear "religious."  For example, soup kitchens, schools, hospitals, care for the elderly, orphanages, half-way houses, and care for the oppressed or homeless, appear secular in action rather than the exercise of religion.   If a religion also conducts a business that is formed essentially as part of a religious mission, but also requires the use of non-religious employees as part of its operations, it is no less religious.  Its essential religious mission confers its status as a religious rather than secular operation.

Any established major religion in the United States will have a substantial charitable component driven by its religious beliefs. The execution of this religious mandate by the faithful includes the necessity of hiring non-believers to perform administrative and operational functions in fulfillment of the mission.  The issue is which religious dictates can a church follow without violating basic individual rights of its employees?

The payment of minimum wage, the following of workplace safety regulations and the avoidance of criminal actions against an employee, are examples of the correct imposition of secular law to church businesses for the protection of employees. 

But the HHS requirement for contraception coverage is of a different kind:  It mandates a benefit that in its very nature violates a core religious position, while at the same time is not an essential right driven by a minimum decency for the good of workers. Rather, it is an insurance benefit covering an often optional, non-life threatening

condition: fertility. 

In the balance, the First Amendment constitutional protection is not to be so easily trumped.

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