In a victory for employers seeking summary judgment in employment discrimination cases, the Ninth Circuit held that discriminatory remarks that merely quote third parties—including pejorative phrases—do not create a genuine issue of fact as to whether the employer demonstrated discriminatory animus.

In Hittle v. City of Stockton, Hittle's manager received an anonymous letter and other complaints that Hittle had exercised favoritism towards his Christian subordinates. The letter referred to those employees as a “Christian Coalition.” Hittle's manager then met with Hittle to explore potential favoritism, telling Hittle that she had “heard [he] was part of . . . a Christian Coalition.” The Ninth Circuit affirmed summary judgment for the employer, ruling that, because the manager had used the term to investigate the reported perception of favoritism, repeating the term “Christian Coalition” did not evidence religious animus.

This conclusion seems logical: repeating another's phrase, particularly in the context of investigating a complaint, does not necessarily mean a manager is adopting that phrase or expressing those sentiments as their own views. Whether the manager adopted the phrase to reflect their own view will be a context-specific inquiry. So, while here the court concluded that the context indicated that the manager had not demonstrated discriminatory animus, using the phrase in a different context—even if repeated from others—may have yielded a different outcome.

As such, it continues to be important for employers to refrain from using pejorative phrases whenever possible. For example, Hittle's manager could have accomplished the same purpose by telling Hittle, “I received a complaint that you are favoring other Christian colleagues.” Likewise, in some instances, it may be best to refrain from asking a direct manager to investigate complaints, even initially, and instead rely on trained Human Resources professionals or investigators when inquiring about employee complaints.

In either case, managers and Human Resources personnel should be abundantly clear that they are quoting a third party if there is a need to repeat certain discriminatory or pejorative phrases. Being cautious about word choice and documenting whether those words were part of a separate complaint can help defeat summary judgment, and could avoid litigation altogether.

Finally, employers should also note that the Hittle holding did not overrule Ninth Circuit precedent that a single clearly discriminatory remark is sufficient to defeat summary judgment.

"When discriminatory remarks are merely quoting third parties and the real issue is public perception or other forms of misconduct (such as engaging in an activity that does not benefit the employer), there is no genuine issue of material fact that the employer was discriminatory."

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