ATTENTION CALIFORNIA EMPLOYERS:  COWORKER’S ONE-TIME USE OF A RACIAL SLUR MAY CONSTITUTE ACTIONABLE HARASSMENT…

. . . and employers may be held liable. On July 29, 2024, in Bailey v. San Francisco District Attorney’s Office (2024) 16 Cal.5th 611,the California Supreme Court held that an isolated act of harassment may be actionable under the California Fair Employment and Housing Act (“FEHA”), if it is sufficiently severe in light of the totality of the circumstances and, in this case, the court found that a coworker’s isolated, one-time use of a racial epithet may be sufficient. 

Facts

Plaintiff Twanda Bailey, a former employee in the San Francisco District Attorney’s Office, alleged that her coworker (“Larkin”), with whom she shared office space and job duties, called her the n-word in an isolated incident. Fearing harassment and retaliation due, in part, to Larkin’s close friendship with the Human Resources Manager (“HR Manager”), another employee reported the incident on Bailey’s behalf. Thereafter, Bailey alleged the HR Manager failed to file a complaint, refused to separate Bailey and Larkin, and engaged in a “continuous and daily” course of intimidating conduct toward Bailey, including chastising her for discussing the incident with other employees, threatening her with liability for harassing Larkin, jeering and laughing at her, and mouthing to her “you are going to get it.”  

After the Department of Human Resources determined that Bailey’s allegations were “insufficient to raise an inference of harassment/hostile work environment or retaliation,” Bailey sued the City and County of San Francisco (the “City”) alleging racial discrimination and harassment, retaliation, and failure to prevent discrimination in violation of FEHA. The trial court granted summary judgment for the City, finding that Bailey failed to prove sufficiently severe or pervasive conduct based on Larkin’s one-time use of the n-word and that the HR Manager’s alleged misconduct did not amount to a retaliatory adverse employment action. The Court of Appeal affirmed the decision, holding that a slur made by a coworker – as opposed to a supervisor – was not actionable because Larkin had no direct authority over the terms and conditions of Bailey’s employment. 

On appeal, the California Supreme Court considered (1) whether a coworker’s one-time use of a racial slur may be sufficiently severe to alter the conditions of employment and create a hostile work environment, and (2) whether a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace may constitute a retaliatory adverse employment action. 

Racial Harassment/Hostile Work Environment

In evaluating whether the one-time use of a racial slur was sufficiently severe to support a claim of harassment, the court considered the use of the epithet itself, including the specific words of the speaker and the larger social context of the workplace. While the speaker’s status may be a significant factor, the court explained that a “rigid distinction between supervisors and coworkers fails to take into account the full context of the workplace” and may ignore informal workplace relationships, where a coworker who “holds the manager’s ear . . . may have a unique ability to alter the conditions of others’ employment without having direct managerial authority.” Specifically, when a supervisor appears to allow or ratify the conduct, it may “imbue the subordinate with a certain degree of authority to alter the working conditions of their coworkers.”

Here, the court found that the one-time use of the n-word was sufficiently severe, noting it is “intrinsically humiliating” and far from “a mere offensive utterance”; that Larkin’s relationship with the HR Manager allowed Larkin to act with “a certain degree of impunity” and gave her a degree of influence over Bailey’s working conditions; and that the physical work environment made it impossible for Bailey to distance herself from Larkin. Based on the totality of the circumstances, the court concluded that the incident could be sufficiently severe or pervasive to constitute a hostile work environment. 

The court also considered whether the City responded with immediate and appropriate corrective action and noted that, because the HR Manager was charged with receiving complaints of workplace harassment, her conduct must be considered when evaluating the City’s response. Here, the court found the HR Manager’s conduct suggested that harassment complaints would not be taken seriously and actively undermined the remedial efforts of others in a position of authority. Accordingly, the court remanded the issue to the Court of Appeal to consider the HR Manager’s conduct in assessing the City’s liability.

Retaliatory Adverse Employment Action

In considering whether the HR Manager’s alleged conduct constituted an adverse employment action, the court held that the analysis must consider the realities of the workplace, and the alleged retaliatory acts must be considered collectively, rather than individually. The court found that the Court of Appeal failed to appreciate “the nature of this conduct by this particular actor in the context of this workplace.”  When viewed collectively, the court found the HR Manager’s alleged retaliatory acts could constitute an adverse employment action that “effectively sought to withdraw Bailey’s means of reporting and addressing workplace discrimination and harassment.” The court emphasized that its opinion does not hold an employer’s inaction as an act of retaliation but rather is based on an HR Manager’s purposeful obstruction of an employee’s complaint. 

Employer Takeaways

This case establishes a new precedent for evaluating the viability and liability of harassment claims under FEHA. Pursuant to this decision, employers should be aware that an isolated incident, if sufficiently severe, could constitute actionable harassment for which an employer may be liable, even where the harasser is a non-supervisory employee. The decision also highlights the significance of informal workplace relationships when considering the impact of coworker conduct in harassment claims. Accordingly, employers should ensure they clearly define and consistently implement their anti-harassment and retaliation policies, including procedures for reporting inappropriate conduct.


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