How do judges resolve “he-said/she-said” in discrimination cases?

TL;DR: They don’t.

Here’s a longer explanation.

There comes a time in most discrimination lawsuits when a defendant-employer will file a motion for summary judgment. By filing that motion, the movant is telling the court that there are no material facts in dispute and, if the court applies the well-settled law of, say, Title VII of the Civil Rights Act of 1964, to those facts, then the movant should win.

Often, however, the movant is overly ambitious because the plaintiff may say that “x” happened, and the defendant may say that “y” happened. The defendant may have ten witnesses prepared to refute the plaintiff’s version of the facts. Even so, courts cannot make credibility determinations at summary judgment.

I’ll give you an example.

This is a recent Second Circuit decision involving claims of race and sex discrimination. The plaintiff alleged that:

• Her male supervisor “kicked the unlockable women’s bathroom door open and walked in while [she] was using the bathroom.”
• Her supervisor and co-workers laughed and shouted racist and sexist comments, such as “f**king Asian,” “f**king yellow Asian,” and “f**king stupid b***h.”
• The supervisor resisted transferring the plaintiff, responding angrily, “F**k the B***h! Do not transfer her! I’m her boss…Kick her out. Stupid Yellow B***h!”
• Another co-worker cursed and laughed at the plaintiff and said, “F**k Asians” whenever she saw her.

The lower court granted summary judgment to the defendant on the plaintiff’s race and sex-based hostile work environment claims. Why? Because it made unwarranted credibility determinations regarding the evidence.

For instance, because the plaintiff claimed that she was forced to work alone and that her co-workers and supervisors harassed her, the district court found that it was “implausible that both allegations could be true simultaneously.” Okay, but it’s possible that she interacted with her co-workers and supervisor at other times during the workday, such as during breaks and meetings.

Recognizing that juries, not judges, make credibility determinations, the Second Circuit reversed the lower court’s decision.

So, often, it’s not easy to convince a judge that complained-of behavior never happened. The better approach, which makes my life as a management-side employment lawyer much easier when I defend these actions, is for companies to take complaints of harassment seriously before the lawsuit, investigate, and take other pre-emptive action that is reasonably designed to end the complained-of behavior.

Do that, and the employer often has an absolute defense to any hostile work environment claim regardless of whether the employee was harassed.