On July 29, 2024, the California Supreme Court issued an opinion in Bailey v. San Francisco District Attorney’s Office reaffirming that the single use of a racial epithet can be severe enough to constitute actionable harassment under the California Fair Employment in Housing Act (FEHA).
Bailey was a former employee of the District Attorney’s office. She alleged that a coworker, who shared Bailey’s office and job duties, called her the N-word. She informed several coworkers about the incident, but did not complain to HR right away out of fear of retaliation and harassment. A coworker eventually reported the incident, but the department’s personnel officer failed to file a formal complaint with HR.
When Bailey asked HR for the report, HR informed her that no report had been filed. When Bailey requested that a complaint be filed, the personnel officer told Bailey that she should not have told her coworkers about the incident. Later, the personnel officer pulled her car alongside Bailey’s and mouthed, “you are going to get it.” The personnel officer also ignored, laughed at and belittled Bailey in the workplace.
The Court’s Decision
The California Supreme Court granted review of the trial court’s grant of summary judgment in favor of the District Attorney’s Office. The Court analyzed whether a single racial epithet made by a coworker could be considered sufficiently severe to be actionable harassment on its own, without other harassing conduct or comments. The Court determined that whether it was a coworker or supervisor who uttered the racial epithet was not determinative of whether the act constituted unlawful harassment, but rather should be considered as part of the totality of the circumstances, 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 determined that the case should not have been dismissed on summary judgment and that the jury – not the court – should decide whether one racial epithet was sufficiently severe to constitute actionable harassment.
This decision should serve as a reminder that employers cannot let racial epithets or other inappropriate comments slide when deciding whether to investigate and impose discipline. The Bailey decision ensures that employers facing similar situations are unlikely to be successful at the summary judgment stage, which substantially increases settlement value.
Your Cook Brown attorney is available to guide you through these situations when they arise – please do not hesitate to reach out to us if you have questions about an incident or how to respond!
