California Supreme Court Says Even a Single Slur by a Coworker Can Give Rise to Employer Liability for Hostile Work Environment and Retaliation (US)
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California’s Supreme Court says that a single utterance of the “N Word” by a co worker can give rise to workplace harassment claims!
In Bailey v. San Francisco District Attorney’s Office, the California Supreme Court ruled that a single use of a racial slur may be actionable harassment under the California Fair Employment and Housing Act if it is sufficiently severe under the totality of the circumstances.
The Case
Twanda Bailey, who is African American, was employed by the San Francisco District Attorney’s Office. She alleged that a co worker with whom she shared an office and job duties called her a racial epithet; however, she did not immediately report the incident because she feared harassment and retaliation from the Human Resources (HR) Manager, who had been accused of harassment and retaliation by other African American employees who reported incidents involving Bailey’s co worker.
Eventually, Bailey’s colleague reported it to the department’s personnel officer; however, the officer failed to file a formal report with the City’s HR Department, as required by City policy. When Bailey later requested a copy of the complaint, the personnel officer told her that no formal complaint was filed, refused Bailey’s request to file a complaint, and told Bailey that she should not have told her co workers about the incident because that could have created a hostile work environment. A couple of months later, the City’s HR Department received a copy of the complaint from a third party, but failed to take action, deciding that one comment was not sufficiently severe to create a hostile work environment.
After taking a medical leave of absence for stress from her working environment, Bailey sued the City for racial harassment and retaliation. The trial and appellate courts ruled against Bailey (effectively dismissing her case) finding that a co worker’s single use of a racial epithet was insufficiently severe to support a claim of harassment.
Supreme Court Decision
The Supreme Court reversed. It focused its inquiry on whether the “totality of circumstances” created a hostile work environment, giving “full consideration of the specific word or words used, the speaker, whether it was directed at the plaintiff, and the larger social context of the workplace.”
The Court concluded that these facts, taken together, created a triable issue of fact as to whether the alleged harassment was sufficiently severe as to create a hostile working environment. In other words, Bailey presented enough evidence for a jury, and not the judge, to decide whether a hostile working environment existed.
Also, since the epithet was uttered by a co worker, and not a supervisor, to impose liability on the City, Bailey had to show it had knowledge of the incident and failed to take immediate and appropriate corrective action. The Court found sufficient evidence that Bailey’s complaint was not timely investigated and was undermined by the HR Manager.
Takeaway for Employers
Employers need to be vigilant about properly handling harassment, discrimination, and retaliation complaints. This includes having in place a well-defined policy and procedure for reporting and investigating all complaints of discrimination, harassment, and retaliation. Employees need to be trained on the complaint process and assured they can make complaints without fear of retaliation.