California Employment Law Notes - May 2013

Asian Employee's Claim Of Discrimination By Supervisor Of Arab Ancestry Was Properly Rejected

Hatai v. Dep't of Transportation, 214 Cal. App. 4th 1287 (2013)

Kenneth Hatai sued his employer (CalTrans) and his supervisor (Sameer Haddadeen), alleging discrimination based on his Japanese ancestry and the fact that he was not of Arab ancestry like Haddadeen. The case was tried to a jury, which returned defense verdicts in favor of CalTrans and Haddadeen. On appeal, Hatai asserted the trial court erred by excluding evidence of Haddadeen's alleged discrimination against persons of non-Arab ancestry. The Court of Appeal affirmed the judgment in favor of the defendants (including the award of more than $30,000 in costs to defendants), holding that "the trial court acted well within the bounds of its discretion in excluding evidence related to employees outside Hatai's protected class" (i.e., employees of east Asian or Japanese descent). The Court noted that "this [case] was pled as an anti-Asian case, not as an Arab favoritism case. It was only on the eve of trial that Hatai sought to reframe the case to show that Haddadeen had discriminatory intent 'against anyone who is not an Arab' - lacking evidence of anti-Asian animus by Haddadeen, Hatai now sought to prove his case by showing Haddadeen's general xenophobia against non-Arabs."

"Crude And Offensive Remarks" Did Not Create A Hostile Work Environment, But Employer May Have Illegally Retaliated

Westendorf v. West Coast Contractors, 712 F.3d 417 (9th Cir. 2013)

Jennifer Westendorf, a project manager assistant, claimed sexual harassment and retaliatory discharge under Title VII of the Civil Rights Act of 1964. The district court granted the employer's motion for summary judgment, and the Ninth Circuit affirmed dismissal of the sexual harassment claim on the ground that Westendorf had failed to submit sufficient evidence to support a finding that the offensive sexual conduct (which consisted of four or five "crude and offensive remarks") was so severe or pervasive that it altered the conditions of her employment and created a hostile or abusive work environment. However, the Court reversed the dismissal of Westendorf's retaliatory discharge claim on the ground that the evidence was sufficient to raise a material question of fact as to whether Westendorf's complaints about the "crude and offensive remarks" were a but-for cause of her termination.

Employee Could Proceed With Invasion Of Privacy Claim Despite Absence Of Written Disclosure

Ignat v. Yum! Brands, Inc., 214 Cal. App. 4th 808 (2013)

Melissa Ignat, who was employed in the Yum Real Estate Title Department, suffered from bipolar disorder. In connection with an absence related to her bipolar disorder, Ignat's supervisor "told everyone in the department that Ignat was bipolar." After she returned to work, Ignat's coworkers avoided and shunned her, and one of them asked the supervisor if Ignat was...