Supervisor’s Derogatory Comments About Hispanics Enough to Advance Bias Claim

A bank teller who alleged that her employment was terminated because she is of Mexican heritage can proceed with her race and national origin discrimination claims, a California appellate court ruled. Even though the bank introduced evidence that the teller was fired for violating a bank policy on check cashing, the teller’s evidence that her supervisor made derogatory comments about Hispanics was enough to suggest that the bank’s asserted reason for firing her was a pretext for discrimination and that the bank acted with discriminatory intent, the court said.

On occasions when the teller was sitting down, her supervisor allegedly told her, “It’s not siesta time.” On other occasions, the supervisor suggested or questioned whether she drank tequila, made disparaging comments about bank customers who were Hispanic, and mocked the teller’s Spanish-speaking clients for their inability to speak or understand fluent English.

The appeals court also ruled that the teller’s hostile-environment harassment and retaliation claims could proceed and therefore reversed the trial court order dismissing the lawsuit before trial.

Proving Intent in Discrimination Cases

The court first noted that important principles of California law supported the teller’s argument that her discharge was discriminatory. “Proof of discriminatory intent often depends on inferences rather than direct evidence,” the court said.

Next, the court said that derogatory remarks relating to race, national origin or ancestry—even those not made directly in the context of an employment decision—may be relevant and circumstantial evidence of discrimination.

And finally, the court noted that it should not view each of the supervisor’s alleged remarks in isolation but all together. The court concluded that the nature and persistence of the derogatory remarks made by the supervisor met the teller’s burden of offering enough evidence for a reasonable jury to conclude that the employer engaged in intentional discrimination.

The employer argued that the alleged comments about a siesta and tequila were neutral regarding race and national origin because “siesta” has become “commonplace” in “English vernacular,” and many non-Hispanic people enjoy tequila. However, the court said, whether the supervisor “used terms from a contemporary urban dictionary or was evidencing discriminatory animus was for the jury” to decide.

Retaliation

The teller also claimed that the bank terminated her in retaliation for her complaints to her supervisor about the comments related to race and national origin that he directed at her and made about bank customers in her presence. The trial court had also dismissed this claim before trial, but the appeals court said she could proceed with this claim.

The teller alleged that her supervisor made the remarks over a two-year period and that she repeatedly asked him to stop, but he continued, the court noted.

Such complaints are protected activity under the anti-retaliation provision of California’s Fair Employment and Housing Act, and the fact that the teller was fired not long after she complained about the supervisor’s comments is evidence that the complaints may have led to the termination, the court said.

Harassment

Finally, the appellate court ruled that the teller’s hostile work environment claim could go forward.

All the supervisor’s remarks taken together raise an issue that should be submitted to the jury as to whether the teller was subjected to a hostile work environment, the court said. The trial court therefore made an error in dismissing the claim before trial.

Hernandez v. Bank of America, Calif. Ct. App., No. B289499 (Sept. 24, 2019).

Professional Pointer: Employers should note that the court did not say that the supervisor’s alleged comments were enough to prove discrimination or harassment. The court said only that the trial court was incorrect in dismissing the claims before trial because the evidence was sufficient to allow the teller to argue to a jury that the employer violated the law. The ultimate decision should be up to the jury in this case, the court said.