Finding the Facts - Disciplinary and Harassment Investigation

Case Studies A California Court of Appeal held that a Pakistani employee who was allegedly taunted and intimidated by his Indian colleagues could take his hostile work environment case to trial. 185 Plaintiff, a Muslim born in Pakistan was terminated from employer after he admitted to sending prohibited emails from his co-worker’s email account. A few days before his termination, Plaintiff reported to Human Resources that several of his Indian colleagues had been harassing him based on his national origin and religion. Following his termination, Plaintiff sued for harassment, retaliation and failure to investigate and prevent harassment and retaliation. Employer won summary judgment, but was Court of Appeals reversed. The Court of Appeals concluded that there was sufficient evidence for a jury to conclude that Plaintiff was harassed because of his religion and/or national origin and that his complaints to his supervisor were sufficient to trigger an investigation into harassment. Rather than presenting only isolated incidents of harassment, Plaintiff offered evidence of a pervasive pattern of rudeness, taunting, and intimidation from Indian co-workers. Practice Pointer - While harassment that targets a person because of his or her sex is usually the most prevalent, this case illustrates that harassment can also include conduct that targets religion and national origin. Supervisors must not allow such conduct in the workplace. Any time a complaint of harassment on the basis of religion, national origin, or any other protected status is received, either formally or informally, the district must conduct an investigation. This is true even if the complaint appears to have no merit whatsoever.

Up through 2018, to establish a hostile environment harassment claim, an individual needed to show that: (1) he or she was subjected to verbal, visual or physical conduct of a harassing nature because of any protected status; (2) the conduct was both subjectively and objectively offensive; and, (3) the conduct was sufficiently severe or pervasive to alter the conditions of the employee’s working environment or a student’s educational environment so as to create an abusive environment. Effective January 1, 2019, a new section of the Government Code, enacted by SB 1300, declares that “harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well- being.” 186 Under this new law, even one single incident of harassing conduct is enough to create a hostile work environment if the conduct unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive working environment. 187 This analysis depends on the totality of the circumstances, and a single discriminatory remark, even if not made directly in the context of an employment decision like termination or discipline, and

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 117