Can a single incident of racial discrimination be sufficient to support a claim of Fair Employment and Housing Act (FEHA) violations?
Yes, the California Supreme Court has ruled unanimously.
Twanda Bailey, an African American female, alleged that Saras Larkin, a coworker with whom she shared an office and job duties, walked up to her and quietly said “You [N-words] is so scary.”
Bailey, crying and upset, immediately told three coworkers. Although she was offended by the use of the racial slur, she did not immediately complain to human resources (HR) because she feared harassment and retaliation.
Specifically, Bailey understood that other employees had been harassed and discriminated against following incidents with Larkin, who was best friends with the office department personnel officer, Evette Taylor-Monachino, and that two other African American women had been reassigned after complaining about Larkin.
Another coworker notified HR of the incident. Taylor-Monachino did not file a formal complaint about it, as city policy required.
When Bailey later asked Taylor-Monachino for a copy of the complaint and was told it did not exist, she requested that a complaint be filed. Taylor-Monachino refused.
After that interaction, Bailey perceived that Taylor-Monachino’s conduct toward her changed and, one morning in the parking lot, Taylor-Monachino mouthed the words “you are going to get it.”
Increasingly upset at work, Bailey requested time off and then filed suit against the City of San Francisco for racial discrimination, harassment and retaliation in violation of FEHA.
The city moved for summary judgment and the court granted the motion, finding the sole use of the N-word insufficient to carry Bailey’s racial discrimination claim. It also found that no adverse employment action occurred.
Bailey appealed. The Court of Appeals affirmed but the state’s highest court reversed.
“[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,” the court wrote.
The city argued that a single race-based comment by a coworker could not be considered pervasive or severe enough to be actionable.
However, the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, the court said, and although viable hostile work environment claims often involve repeated conduct, it is not required.
The N-word in particular “carries with it, not just the stab of present insult, but the stinging barbs of history, which catch and tear at the psyche the way thorns tear at the skin,” the court said. “Far from ‘a mere offensive utterance’ this slur may be intrinsically ‘humiliating’ depending on the totality of the circumstances.”
Further, the fact that a coworker—and not a supervisor—uttered the slur did not make it less painful, the court added. While the status of the harasser is a factor in considering both the severity of the harassing conduct and whether that conduct is imputable to the employer, a rigid distinction between supervisors and coworkers fails to take into account the full context of the workplace.
Applying these standards, the court found a triable issue of fact whether Larkin’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.
As for Bailey’s retaliation claim, the court emphasized “the breadth of conduct that may constitute an actionable adverse employment action, as well as the mandate that such conduct be considered collectively and in context.”
The trial court failed “to appreciate the nature of this conduct by this particular action in the context of this workplace,” the court said. “Considering Bailey’s allegations collectively and in view of the unique circumstances of the affected employee and the workplace context of her claims, we conclude that a reasonable trier of fact could find Taylor-Monachino’s acts constituted a course of conduct that rises to the level of an adverse employment action.”
Critically, the court said it was important to keep in mind Taylor-Monachino’s role in the workplace and the fact that her course of conduct began with the obstruction of Bailey’s complaint.
“[T]here exists a triable issue of fact whether Taylor-Monachino’s course of conduct adversely affected the terms and conditions of Bailey’s employment by, among other things, withdrawing Bailey’s right to avail herself of the human resources process available to other employees,” the court said, reversing and remanding.
To read the opinion in Bailey v. San Francisco District Attorney’s Office, click here.
Why it matters
An isolated act of harassment is actionable if it is sufficiently severe under the totality of the circumstances, and a coworker’s use of an unambiguous racial epithet—in this case, the N-word—may be found to suffice, the California Supreme Court held. The unanimous court also emphasized the importance of the fact-specific nature of such cases, and the need to consider the context of the facts in each case.