California Supreme Court Affirms Single Comment Can Constitute Harassment and Addresses Standard for Retaliation

In a July 29, 2024, opinion, the California Supreme Court reaffirmed that a single use of a racial epithet can be severe enough to be actionable harassment under the California Fair Employment and Housing Act (FEHA). Moreover, with respect to retaliation, an employer’s effective withdrawal of an employee’s means of reporting and addressing harassment can be considered an “adverse employment action,” supporting a retaliation claim under the FEHA.

Background of the Case

Plaintiff Twanda Bailey sued the San Francisco District Attorney’s Office, the former San Francisco District Attorney, and the City and County of San Francisco, alleging claims under the FEHA for racial harassment and retaliation. Bailey, a former employee of the District Attorney’s Office — and who happens to be Black — was called a racial epithet in January 2015 by a coworker. Although Bailey immediately told coworkers of the incident, she did not complain to Human Resources right away because she feared harassment and retaliation. Ultimately, a colleague of Bailey’s reported the incident. However, their department’s personnel officer failed to file a formal complaint to the city’s Department of Human Resources, as was required by city policy.

A couple of months later Bailey requested a copy of the complaint submitted to the city, but the personnel officer told her that no complaint was filed. When Bailey requested a complaint be filed, the personnel officer responded by telling Bailey that she should not have told her coworkers about the incident. According to Bailey, following that meeting, the personnel officer’s conduct toward her changed.

In April 2015, the Department of Human Resources finally received a report about Bailey’s complaint (from someone outside the District Attorney’s Office) but ultimately determined that one comment was not sufficient to create an abusive working environment, and the personnel officer’s refusal to make a complaint did not impair Bailey’s ability to make a complaint because a colleague had already made the complaint regarding the racial epithet.

In August 2015, Bailey reported the following conduct of the personnel officer: the personnel officer pulled her car alongside Bailey’s and mouthed “you are going to get it,” and in the workplace she ignored, laughed at, and belittled Bailey. The Department of Human Resources investigated but determined Bailey’s allegations were not sustained, as they could neither be proven or disproven.

Supreme Court Analysis

The Supreme Court granted review of the trial court’s grant of summary judgment (dismissing the case), which the Court of Appeal had affirmed.

The Court specifically looked at whether a single racial epithet made by a coworker could be considered sufficiently severe to be actionable on its own, without other harassing comments or activities, even though the coworker did not have supervisory authority over Bailey. The Court determined that the speaker’s status as a coworker — rather than a supervisor — did not determine whether or not one comment was sufficient to constitute unlawful harassment. Rather, the Court underlined the importance of looking at the circumstances of the conduct, 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.” Thus, the speaker’s status as coworker or supervisor must be considered as part of the totality of the circumstances but itself is not dispositive, as “not all power appears on an organizational chart.”

Ultimately, the Court determined that there is a triable issue of fact (meaning that a jury should decide) as to whether the one-time use of a racial epithet was sufficiently severe. In this case, consideration must be given to the degrading and humiliating nature of the term, the fact that Bailey could not distance herself from the speaker, and that the speaker had a close relationship with the personnel officer who failed to report Bailey’s complaint and ostracized her in the office. The Court thus remanded the case, sending it back to the trial court for reconsideration of whether the harassment was actionable and whether liability imputed to the City.

The Court also reviewed Bailey’s retaliation claim. The parties disputed whether Bailey had suffered an “adverse employment action” such that she had a claim under the FEHA. The Court noted that an actionable adverse employment action covers a breadth of conduct and that the personnel officer’s conduct must be considered together and in context. The Court emphasized the importance to “appreciate the nature of this conduct by this particular actor in the context of this workplace” (emphasis in original). Here, the Court held that, because the personnel officer effectively sought to withdraw Bailey’s means of reporting and addressing workplace discrimination and harassment, she impaired Bailey’s job performance by leaving her “unprotected from the very harms FEHA was designed to eliminate.”

Takeaways

The Bailey decision highlights the importance of having a robust policy and procedure for reporting and investigating complaints. That policy and procedure should then be followed as to all complaints and followed by immediate and appropriate corrective action as needed. Employers need to make sure that employees are aware of the complaint mechanism and understand that they can make complaints without fear of retaliation.

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