Nurse Can Proceed with National-Origin and Age-Bias Claims

 

By Joanne Deschenaux August 1, 2019
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A 54-year-old registered nurse who was born in the Philippines and spoke English with a strong accent can move forward with her claims of workplace harassment based on age and national origin, a California appeals court ruled.

The plaintiff sued her former employer, a hospital, alleging that her supervisor repeatedly criticized Filipino nurses, stating they did not speak English correctly, and told other employees that the nurses had been there for too long and made too much money.

The plaintiff was a unit coordinator in the hospital's medical-surgical department, where most of the unit coordinators were Filipino.

She claimed that whenever her supervisor met with the unit coordinators, she singled out for criticism those who spoke English as a second language and often commented on their accents and supposed poor English.

At one meeting, the supervisor allegedly told the unit coordinators, "I don't know how [the hospital] gets you guys. Your accents are thick."

She allegedly read from performance evaluations drafted by unidentified unit coordinators, criticized the drafters' grammar and said, "Those of you with a thick accent, those of you that cannot speak English need to go back to school and learn how to read and write grammar."

At another meeting, the supervisor allegedly introduced a new unit coordinator who was white and said, "She speak[s] good English. She's well-educated. She's going to do a better job [than] most of you guys here because you guys don't know how to speak English."

In addition, the plaintiff claimed that the supervisor made disparaging comments about them to other hospital employees, saying that the Filipino unit coordinators were "too old" and had been there for too long, and she wanted to get rid of them all. According to one of those employees, the supervisor frequently made such comments.

The plaintiff took medical leave for stress, and when she failed to return after her leave, the hospital fired her. She sued the hospital and her former supervisor for harassment based on national origin and age, among other claims.

Proving a Harassment Claim

It is illegal under California's Fair Employment and Housing Act for an employer to harass an employee because of national origin or age. To proceed to trial with a harassment claim, a plaintiff must show that:

  • He or she is a member of a protected class.
  • He or she was subjected to unwelcome harassment.
  • The harassment was based on the protected status.
  • The harassment unreasonably interfered with his or her work performance by creating an intimidating, hostile or offensive work environment.
  • The defendants are liable for the harassment.

The plaintiff failed to show that the supervisor's conduct was based on national origin or age because it was directed at all the unit coordinators, according to the trial court.

The lower court also said the supervisor's statements to other hospital employees were not relevant to the plaintiff's harassment claims because she did not know about them at the time they were made. Finally, the trial court said the conduct was not sufficiently severe or pervasive to constitute illegal harassment. 

The trial court dismissed the claims, and the plaintiff appealed.

[SHRM members-only HR Q&A: What are the California rules regarding workplace harassment, and how do they differ from federal law?]

The appeals court found that the plaintiff presented sufficient evidence for a jury to find that her supervisor's conduct was based on national origin and age. The court said that while the supervisor's statements to other hospital employees weren't relevant to whether the plaintiff was subjected to unwelcome harassment when she went on leave, those statements were relevant to whether the supervisor's conduct was based on national origin and age.

Those statements, the court said, along with the supervisor's criticisms of the unit coordinators' accents, raised a triable issue as to whether the supervisor's treatment of the plaintiff and the other Filipino unit coordinators was motivated by their national origin and age.

In addition, the appeals court said, there was sufficient evidence for a jury to find that the allegedly harassing conduct was severe or pervasive enough to create a hostile or abusive work environment.

Thus, the court ruled that the plaintiff could take her harassment claims to trial.

Galvan v. Dameron Hospital Assoc., Calif. Ct. App., No. C081092 (July 17, 2019).

Professional Pointer: There is no clearly objective test to determine if an environment is sufficiently hostile or abusive to interfere with work performance. This can make a harassment determination difficult, not only for a court trying to apply legal standards, but also for a human resource professional trying to determine if harassment has occurred.

Joanne Deschenaux, J.D. is a freelance writer in Annapolis, Md. 

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