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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Sherlock Holmes Would Be Appalled: Workplace Investigations?

Federal and state statutes and case law generally anticipate that a workplace investigation is an important employer tool that will prevent discrimination and harassment, and even result in some discipline of offenders.  I'm sorry to say I have a different impression of just how these investigations actually work.  They are more often used by employers as "weapons of defense" rather than as "tools of prevention."

Federal law has long given an employer an affirmative defense that an employer is not liable for harassment which is not reported by the alleged victim [at least in cases where there has been "no tangible economic harm."].  California follows an affirmative defense of "Avoidable Consequences."  To the extent the harassment victim could have herself or himself prevented the harassment by reporting it to the employer, the employee is barred from recovery of damages for the period of non-reporting.  Bottom line:  the courts want employers to police themselves.

Instead, many Human Resource departments place their priority on creating legal documents under the direction of legal counsel. The result is an nearly inevitable conclusion of "no evidence" to support the allegations or at best, that there is "some information" of inappropriate conduct but not sufficient to find discrimination or harassment.  These findings, unsurprisingly, seem more likely to be made when the accused is high in the management hierarchy.   In my 17 years of employment law practice, I have not seen one investigation conclude that sexual harassment or other discrimination have occurred.

I really wonder what standard many so called "investigators" actually use in reaching conclusions of "no harassment.".  While proof by admissible evidence in court is not required (or desirable), it seems to me that the standard, at least in California, is whether the employer "acted reasonably" in making a decision to discipline (or forego discipline) of an accused.  That "reasonableness" standard has to be examined in the context of the legal definitions of harassment.  An investigator who does not at least know what "harassment" and "discrimination" are under the law is in a very poor position to reach conclusions.

I have had situations where my clients explain to me that they felt they were under cross-examination by the "investigator" who seemed to challenge their accusation by demanding that my client must have a direct statement by the discriminator of dislike of persons of my client's age, race, or gender.  That is not the law itself, which allows for indirect and circumstantial evidence, such as different treatment, and lack of evidence to support disciplinary action against the protected employee.

Also, many investigators seem to think that by surprising the employee with the investigation, they somehow get better, more reliable information.  Surprising an employee simply serves to get unreliable and incomplete information because the employee has not had time to recollect and organize the information.  The situation is even worse then an attorney is selected to conduct the investigation.  Then the questions seem even more adversarial.

For example, one client shared with me that the interrogator asked repeatedly:  "Is that all the information you have to support your charge of harassment?"  or  "Is there anything else you can think of that would support your charge?" or even:  "What evidence do you have that discrimination occurred?"  These are "deposition style" questions used to "lock in" a witness early to a position to prevent more information coming to light later as the employee remembers other matters.  The questions are not intended or designed to elicit all the facts impartially.   The reason the questions are unfair is that most employees do not know the legal definitions of discrimination and harassment, and think they must have direct evidence, and so will answer:  "Well, I guess that's all.  I don't know of anything else."  If you are an employee in such an "investigation" be sure to say "I may think of more later, and I will let you know," or "I felt these actions were discriminatory, and so I'm listing them all, even if you don't agree."

Another gripe of mine is that an investigation delayed is no investigation at all.  The investigation is part of a general duty to prevent discrimination and harassment, and to take prompt corrective action.  There are two goals:  protect employees from discrimination, and yes, let the harasser and others like him or her know that such conduct is punished.  I have seen many H.R. departments simply ignore or casually respond to complaints that the law requires to be promptly investigated.  The result is liability upon the employer for failure to prevent harassment or retaliation that may thereafter occur.

In conclusion, if Sherlock Holmes were asked why many workplace investigations fail to meet the requirements of the law, I suspect he would answer:  "Elementary my dear Watson."