Can the one time use of the N-word (or other similar racial slur) = harassment in the workplace? CA Supreme Court says it’s possible

The recent California Supreme Court case of Bailey v. San Francisco District Attorney’s Office, No. S265223 (July 29, 2024)) might perk up employers’ ears with regard to prohibited behavior in the workplace. In its recent opinion, the state’s highest court appears to have now set the bar lower in terms of what an employee must show to prove a claim of harassment.

In the case at hand, Plaintiff Twanda Bailey, an African American employee of the San Francisco District Attorney’s Office, claimed that a coworker with whom she shared an office and job duties called her the N-word. Bailey further alleged that, after she reported this incident, the human resources manager obstructed the filing of a formal complaint, engaged in a course of intimidating conduct, and ultimately threatened Bailey that she was “going to get it.”  Bailey’s action against the City alleged she was subjected to racial harassment by her coworker and retaliation by the human resources manager after complaining of the harassment.

After both the trial court and appellate court ruled against Bailey, the case was appealed to the Supreme Court, which posed and concluded the following:

• This case asks us to assess whether certain conduct may be actionable under FEHA. First, we assess whether a coworker’s one-time use of a racial slur may be actionable in a claim of harassment, that is, whether such an incident may be so severe as to alter the conditions of employment and create a hostile work environment. … [W]e conclude that an isolated act of harassment may be actionable if it is sufficiently severe in light of the totality of the circumstances, and that a coworker’s use of an unambiguous racial epithet, such as the N-word, may be found to suffice. Second, we assess whether a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace is actionable in a claim of retaliation, that is, whether such conduct may constitute an adverse employment action. We conclude that it may.…

Harassment claim

In its ultimate favorable ruling for Bailey, let’s review the requirements for unlawful harassment under the FEHA. In general, it is an unlawful employment practice for an employer to “harass” an employee based on membership in a protected class, including race. Harassment of an employee…by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. Harassment includes verbal harassment such as epithets, derogatory comments or slurs on a basis enumerated in the Act; it also includes physical and visual forms of harassment.

To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment. In addition, she must establish that the offending conduct was imputable to her employer. The parties did not dispute that Bailey’s coworker’s conduct was unwelcome and because of race, so the court focused on the severity and the City’s liability.

Turning to the “severe and pervasive” prong, harassment claims focus on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee. The working environment must be evaluated in light of the totality of the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.

The Court evaluated the conduct at issue in this case — the one-time use of a racial slur — noting that “a single racial epithet can be so offensive it gives rise to a triable issue of actionable harassment.”  Although viable hostile work environment claims often involve repeated conduct, it is not required. The California Supreme Court evaluated the United States Supreme Court’s foundational standard which provides that actionable harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The test set forth by the U.S. Supreme Court is whether the alleged conduct is “sufficiently severe or pervasive’ — written in the disjunctive — not whether the conduct is ‘sufficiently severe and pervasive.” This standard allows that an isolated incident of harassment, if extremely serious, can create a hostile work environment. In joining the chorus of other courts in acknowledging the odious and injurious nature of the N-word in particular, as well as other unambiguous racial epithets, the court concluded that there was a triable issue of fact whether Bailey’s co-worker’s one-time use of the N-word was, under the totality of the circumstances, sufficiently severe so as to create a hostile work environment.

Retaliation claim

The court next considered Bailey’s retaliation claim. In California, it is unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. To establish a prima facie case of retaliation under FEHA, an employee must show that (1) she engaged in a “protected activity,” (2) the employer subjected her to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. In evaluating the city’s response, the court noted that a reasonable trier of fact could find that the human resources manager’s course of conduct, in light of her position, effectively sought to withdraw Bailey’s means of reporting and addressing workplace discrimination and harassment. This was not a “[m]inor or relatively trivial” action that does no more than anger or upset the affected employee; rather, the withdrawal of an employee’s right to avail themselves of the HR process typically available to other employees materially affects the “terms, conditions, or privileges” of their employment. Such treatment is reasonably likely to impair the affected employee’s job performance insofar as it leaves them unprotected from the very harms FEHA was designed to eliminate.

So, what then are the takeaways to make careful note of from this case? Here are some proactive tips for employers to consider in the workplace:

1. Employers should have no leniency for any conduct targeted against FEHA’s protected classes. Disciplinary action and even potential termination of an employee who violates FEHA shows that you as an employer care about the working conditions of your employees.
2. The workplace should have a well-defined system for taking in and examining employee harassment and discrimination complaints. Employee handbooks should be one of the various resources’ workers have to understand their rights and responsibilities.
3. Workplace education regarding the definition of harassment and deterrence of illegal conduct is essential.
   

For questions on how your workplace can ensure that it is current in such areas as employee handbooks, interactive, educational harassment, and abusive conduct prevention training, and implementing a solid system for receiving and investigating complaints, contact Rosasco Law Group. We can help avoid a scenario such as the one Bailey unfortunately experienced.