Can an Isolated Act of Harassment be Actionable in California?

In the decision in Bailey v. San Francisco District Attorney’s Office, the unanimous California Supreme Court considered the appeal of a case where Plaintiff Twanda Bailey sued the San Francisco District Attorney’s Office, former District Attorney George Gascon, and the City and County of San Francisco (collectively, the City) for violations of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq.

Under FEHA, it is an unlawful employment practice for an employer to harass an employee because of their race. (§ 12940, subd. (j)(1).)

It is also an unlawful employment practice for an employer to retaliate against an employee for engaging in protected activity, such as making a complaint of racial harassment in the workplace. (§ 12940, subd. (h).)

Bailey, who is African-American, alleges that a coworker with whom she shared an office and job duties called her the N- word.

Bailey further alleges that, after she reported this incident, the human resources manager for the District Attorney’s Office obstructed the filing of a formal complaint, engaged in a course of intimidating conduct, and ultimately threatened Bailey that she was “going to get it.”

Bailey’s action against the City alleges she was subjected to racial harassment by her coworker and retaliation by the human resources manager after complaining of the harassment. 

The trial court granted summary judgment for the City, finding Bailey had failed to make a prima facie showing on her FEHA claims.

The Court of Appeal affirmed, and the Supreme Court granted review.

This case asked the appellate court to assess whether certain conduct may be actionable under FEHA.

First, the appellate court assesses whether a coworker’s one-time use of a racial slur may be actionable in a claim of harassment, that is, whether such an incident may be so severe as to alter the conditions of employment and create a hostile work environment.

For the reasons discussed in its decision, the Supreme Court concluded 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.

Second, the court assesses whether a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace is actionable in a claim of retaliation, that is, whether such conduct may constitute an adverse employment action.

The Supreme Court concluded that it may.

Applying these standards, the record presented triable issues of fact on Bailey’s harassment and retaliation claims, and the Supreme Court reversed the judgment of the Court of Appeal.

Bailey began working at the District Attorney’s Office in 2001 as a clerk in the records department. The office promoted her in 2011 to an investigative assistant position. Bailey worked alongside Saras Larkin, another investigative assistant. 

The two sat next to each other in the records room. Bailey is African- American. Larkin is Fijian/East Indian. On January 22, 2015, while in the records room, Larkin told Bailey that she saw a mouse run under Bailey’s desk.

Bailey was startled and jumped out of her chair. Larkin walked up to Bailey and quietly said, “You [N-words] is so scary.”

Immediately following this incident, Bailey left her office and told three coworkers what Larkin had said. Bailey was crying and upset. Although Bailey was offended by Larkin’s use of the racial slur, she did not immediately complain to human resources (HR) because she feared harassment and retaliation 

On December 30, Bailey filed suit against the City for racial discrimination, racial harassment, retaliation, and failure to prevent discrimination in violation of FEHA.

The City moved for summary judgment and the trial court granted that motion.

The parties agreed the two primary issues for determination were: (1) whether Bailey could establish a triable issue that there was severe or pervasive racial harassment based on the single allegation that her coworker called her the N-word; and (2) whether Bailey could establish a triable issue that she was subjected to an adverse employment action.

Addressing the first issue, the trial court found that the only race-related allegation in the lawsuit was Larkin saying “You [N-words] is so scary.”

The trial court noted that Bailey conceded this was the only race-related allegation at issue.

The trial court concluded that no trier of fact could find severe or pervasive racial harassment based on being “called a ‘[N-word]’ by a co-worker on one occasion.”

Addressing the second issue, the trial court reasoned that Bailey’s 2015 performance review was not an adverse employment action because Bailey presented no evidence showing it could lead to a substantial and material change in the terms and conditions of her employment.

Additionally, the trial court noted that, to the extent Bailey relied on Taylor- Monachino’s alleged misconduct, an allegation of “social ostracism at the hands of co-workers does not amount to an adverse employment action.”

Consequently, the trial court found Bailey could not prevail on her retaliation claim.

In an unpublished opinion, the Court of Appeal affirmed the trial court’s grant of summary judgment.

FEHA recognizes that freedom from employment discrimination on specified grounds, including race, is a civil right. (§ 12921, subd. (a).)

As a matter of public policy, FEHA declares the need to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race.

The supreme court has declared that policy to be fundamental.

The express purpose of FEHA is to provide effective remedies that will eliminate discriminatory practices in the workplace (§ 12920), and its provisions “are to be construed broadly and liberally” to accomplish that purpose.

To that end, FEHA makes it unlawful, subject to certain exceptions not implicated here, for an employer to “discriminate” against an employee “in compensation or in terms, conditions, or privileges of employment” or to “harass” an employee “because of race.” (§ 12940, subds. (a), (j)(1).)

It is also unlawful for an employer to “discharge, expel, or otherwise discriminate against” an employee because they have opposed practices forbidden under FEHA or filed a complaint, testified, or assisted in any proceeding under FEHA. (§ 12940, subd. (h).)

In interpreting these provisions, California courts often look for guidance in decisions construing federal antidiscrimination laws.

Even as the courts look to federal authority, they are mindful that FEHA is a state law and we conduct an “independent analysis” of its provisions using state law principles.

It is an unlawful employment practice for an employer to “harass” an employee based on membership in a protected class, including “because of race.” (§ 12940, subd. (j)(1).)

Harassment of an employee by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.

Harassment includes verbal harassment such as “epithets, derogatory comments or slurs on a basis enumerated in the Act”; and it also includes physical and visual forms of harassment.

To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.

In addition, she must establish that the offending conduct was imputable to her employer.

The parties here do not dispute that Larkin’s conduct was unwelcome and because of race.

Unlike FEHA discrimination claims, which address only explicit changes in the “terms, conditions, or privileges of employment” (§ 12940, subd. (a)), harassment claims focus on “situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” 

In other words, discrimination refers to bias in the exercise of official actions on behalf of the employer” whereas “harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.

Because a harasser need not exercise delegated power on behalf of the employer to communicate an offensive message, harassment claims may be predicated on conduct by supervisors and coworkers alike.

The standard for workplace harassment claims strikes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.

Whether a work environment is reasonably perceived as hostile or abusive is not, and by its nature cannot be, a mathematically precise test.

The working environment must be evaluated in light of the totality of the circumstances.

These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct .

Simple teasing, offhand comments, and isolated incidents (unless extremely serious) are not sufficient to create an actionable claim of harassment.

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position. 

We must therefore consider allegations of a racially hostile workplace from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.

This allows us to recognize forms of discrimination that are real and hurtful, and yet may be overlooked if considered solely from the perspective of an adjudicator belonging to a different group than the plaintiff.

A single racial epithet can be so offensive it gives rise to a triable issue of actionable harassment 

Although viable hostile work environment claims often involve repeated conduct, it is not required.

The foundational high court standard provides that actionable harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

This standard allows that an isolated incident of harassment, if extremely serious, can create a hostile work environment.

Identifying the types of isolated incidents that may create a hostile work environment depending on the totality of the circumstances, courts have recognized that use of an unambiguous racial epithet such as the N-word  may suffice.

The N-word 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.

Far from a mere offensive utterance, this slur may be intrinsically “humiliating” depending on the totality of the circumstances.

Although a single use of a racial epithet, standing alone, would not create a hostile work environment, once the jury had determined that a pervasive pattern of such use had created a hostile work environment, the trial court in this case did not abuse its discretion in concluding that each additional instance would perpetuate the hostile environment and should be enjoined.

The isolated use of an unambiguous racial epithet may be sufficiently severe to create a hostile work environment based on the totality of the circumstances surrounding its use.

In other words, it does not require something more; rather, it requires full consideration of the use of the epithet itself, including but not limited to the specific word or words used, the speaker, whether it was directed at the plaintiff, and the larger social context of the workplace.

What matters is looking to the totality of the circumstances when determining whether the conduct is sufficiently severe or pervasive to be actionable.

Applying these standards to the facts of this case, there is 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.

This case involves an unambiguous racial epithet. The use of the “[N-word]” automatically separates the person addressed from every non-black person; this is discrimination per se.

The word was used only once; it was not overheard but directed specifically at Bailey. Although it was not physically threatening, a jury could find that use of the slur was degrading and humiliating in the extreme .

A jury could also find that the modifier “scary” further heightened the slur’s impact.

When the harasser is a supervisor, the employer is strictly liable for the supervisor’s actions.

When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence.

Specifically, harassment of an employee by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.

It is unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.  This type of unlawful employment practice is known simply as “retaliation.”

To establish a prima facie case of retaliation under FEHA, an employee must show that (1) she engaged in a “protected activity,” (2) the employer subjected her to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.

It is undisputed Bailey engaged in protected activity when she reported Larkin’s use of a racial slur. This was activity for which she could not be subject to retaliation.

The phrase “adverse employment action” does not appear in FEHA but has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute.

LESSONS:

1.         Under FEHA, it is an unlawful employment practice for an employer to harass an employee because of their race. (§ 12940, subd. (j)(1).)

2.         It is also an unlawful employment practice for an employer to retaliate against an employee for engaging in protected activity, such as making a complaint of racial harassment in the workplace. (§ 12940, subd. (h).)

3.         Harassment includes verbal harassment such as “epithets, derogatory comments or slurs on a basis enumerated in the Act”; and it also includes physical and visual forms of harassment.

4.         To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.

5.         To establish a prima facie case of retaliation under FEHA, an employee must show that (1) she engaged in a “protected activity,” (2) the employer subjected her to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.