What happened?

On July 29, 2024, The California Supreme Court ruled that an isolated, one-time use of a racial slur may be so severe (in conjunction with the total of circumstances) that it can alter the conditions of employment, thereby creating an unlawfully hostile work environment.

What are the details?

The Background:

• Twanda Bailey alleged that a co-worker called her the n-word.

• Bailey reported the incident to the City’s HR manager, who did not act and engaged in a course of intimidating conduct.

• Bailey filed a lawsuit against the city, alleging she was subjected to racial harassment by her co-worker, and retaliation by the HR manager after complaining of the harassment.

The Lower Court

• That court concluded that Bailey failed to prove sufficiently severe or pervasive conduct to support her harassment claim, and the actions of the HR manager did not constitute a retaliatory adverse action. 

The California Supreme Court

• The California Supreme Court considered if a single use of a racial slur by a non-supervisor could alter an employee’s working conditions and if the City took appropriate action. Unlike discrimination claims, harassment claims focus on situations where the workplace environment becomes intolerable due to the offensive message communicated by the harassment.
  • The court noted that Bailey’s co-worker not only used an offensive racial remark but also had a relationship with the City’s human resources manager, which could have deterred Bailey from reporting the conduct.
• The court concluded that the totality of these circumstances could constitute a hostile work environment.
• Not properly reporting a racial harassment complaint and requiring the complainant to work close to her harasser may be considered retaliation in violation of the FEHA.
• The Court reversed the summary judgment for the City, ordering the Court of Appeal to reconsider the matter: an isolated, one-time use of a racial slur may be severe enough to alter employment conditions, creating an unlawfully hostile work environment.
  • This is the first time a court has established that a single use of a racial epithet by a coworker can be considered actionable harassment.
  • The court reminded employers of the necessity to consider the totality of circumstances for such claims and to take claims made by employees against coworkers seriously.

For a detailed breakdown of the case.

Business Considerations

• Employers should clearly define and consistently implement anti-harassment and retaliation policies. These policies should provide various avenues for employees to report inappropriate conduct.
• Employers should understand that even a single racial slur by a non-supervisory employee may result in a finding of liability, depending on all the relevant circumstances, per the Supreme Court ruling. Therefore, employers should ensure that their harassment, discrimination, and retaliation prevention policies highlight fundamental and vital aspects of workplace conduct.
• Employers should provide effective and targeted training on these complex issues. It is vital to the success of a harassment, discrimination, and retaliation policy. The training should educate employees of all levels on what constitutes harassing conduct and how to prevent it in the future.
• Employers should ensure prompt and effective remedial action is taken when harassment or retaliation is reported.

Source References

• Bailey v. San Francisco District Attorney’s Office (S265223, July 29, 2024)

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