15 Aug SINGLE RACIAL COMMENT CAN BE SUFFICIENT TO ESTABLISH HARASSMENT CLAIM
The Fair Employment and Housing Act (FEHA) makes workplace harassment based on race an unlawful employment practice. Under well-settled law, to be actionable the harassment must be considered so “severe or pervasive” as to create a “hostile work environment” and adversely alter the plaintiff’s working conditions. When the alleged harasser is a supervisor, employers are strictly liable for the harasser’s conduct. When the harasser is a non-supervisory co-worker, an employer is only liable if it knew or should have known about the alleged harassment and failed to take prompt corrective action.
Prior case law holds that a single use of the “N-word” by a supervisor could be sufficiently severe to constitute actionable harassment under the FEHA. In Bailey v. San Francisco District Attorney’s Office (S26523, July 29, 2024), the California Supreme Court ruled that a co-worker’s single use of the N-word may also be sufficient to establish a hostile work environment harassment claim. The Court reversed a summary judgment that had been granted to the defendant and affirmed by the Court of Appeal, holding that a jury should decide if the co-worker’s single racial slur constitutes actionable harassment.
In reaching this conclusion, the Supreme Court found that an isolated act of harassment may be actionable if it is so severe based on the totality of circumstances, and includes an unambiguous racial slur such as a co-worker’s use of the N-word. While the alleged harasser’s status as a non-supervisory co-worker is one of the factors to be considered, the fact that the racial slur was made by a co-worker instead of a supervisor is not dispositive. The Court rejected a bright-line test for determining if a racial comment is sufficiently severe that depends solely on the status of the speaker. By instead focusing on the totality of circumstances, factors such as whether the co-workers share an office space, work side-by-side, and closely interact are relevant to determine if the co-worker’s conduct is actionable harassment.
Having found that it was error to dismiss the plaintiff’s harassment claim on summary judgment based on the severity of the conduct, the Court next considered whether the employer’s response to the harassment was prompt and appropriate corrective action. The employer must show that the steps taken to address the harassment were reasonably calculated to stop it from occurring in the future and deter future harassment. The Supreme Court found there was evidence in the record that would allow a jury to find that the defendant did not take sufficient remedial action, including comments by the human resources manager who was a friend of the alleged harasser that could be construed as discouraging the plaintiff’s complaint.
Lastly, the Court also reversed the summary judgment ruling on the plaintiff’s FEHA retaliation claim. The trial court had dismissed the retaliation claim on the grounds that the plaintiff failed to establish she suffered an “adverse employment action” after she made her harassment complaint, which was affirmed by the Court of Appeal. The Supreme Court reiterated that an adverse employment action is one that “materially affects the terms, conditions, or privileges of employment.” Although a minor or trivial action that is reasonably likely to do no more than anger or upset an employee is not sufficient, “adverse treatment that is reasonably likely to impair an employee’s job performance or prospects for advancement in their career falls within the reach of FEHA’s antiretaliation provision.”
The Court pointed to several facts that taken together could be sufficient for a jury to find the plaintiff suffered an adverse employment action after her complaint about harassment, including: steps taken by the human resources manager to obstruct an investigation of the plaintiff’s complaint; chastising plaintiff for telling other co-workers about the racial slur; refusing to separate plaintiff and the harasser; “shunning” the plaintiff after her complaint; and negative comments in the plaintiff’s performance review. The Court found that such treatment “is reasonably likely to impair the affected employee’s job performance insofar as it leaves them unprotected from the very harms that FEHA was designed to eliminate.”
The Court noted that an employer’s mere failure to investigate a claim of harassment or take corrective action is not itself actionable retaliation. The plaintiff’s retaliation claim was not based on the defendant’s inaction, but on its purposeful obstruction of her complaint. A jury should be allowed to consider a retaliation claim where a supervisor or person of authority obstructs and threatens an employee for complaints about harassment.
Although this decision was in the context of a racial slur, the Court’s ruling could apply to other forms of harassment, including sex harassment. For example, a single use of the “C-word” by a co-worker may be sufficient to survive summary judgment and get to a jury. The Court’s discussion of retaliation claims will also make it easier for plaintiffs to defeat summary judgment and allow a jury to decide their claims. To be sure, this decision raises the stakes significantly for employers because more cases will be left for juries to decide. This additional litigation risk should also provide further incentive for parties to consider early mediation to resolve the case.
