Single Use of Racial Slur May Constitute Harassment

Seyfarth Synopsis: The California Supreme Court ruled that an isolated, one-time, use of a racial slur may be so severe—when viewed in relation to the totality of the circumstances—as to alter the conditions of employment, thereby creating an unlawfully hostile work environment. Twanda Bailey v. San Francisco District Attorney’s Office.

The Facts

Twanda Bailey, a fourteen-year veteran of the San Francisco District Attorney’s Office, alleged that a co-worker, with whom she shared an office and job duties, called her the n-word. Bailey reported the incident to the City’s human resources manager, who allegedly obstructed the filing of a formal complaint, and engaged in a course of intimidating conduct, including threating Bailey that she was “going to get it.” Bailey filed a lawsuit against the City, alleging she was subjected to racial harassment by her co-worker, and retaliation by the human resources manager after complaining of the harassment.

The Lower Courts’ Decisions

The trial court granted summary judgment for the City. That court concluded that Bailey failed to prove sufficiently severe or pervasive conduct to support her harassment claim. The trial court further concluded that the subsequent actions by the HR manager did not constitute a retaliatory adverse action. In affirming the trial court’s decision, the California Court of Appeal focused on the distinction between racial slurs uttered by supervisors—which are commonly considered more serious because supervisors are inherently vested with the employer’s authority—and those made by non-supervisory co-workers.

The California Supreme Court Decision

On appeal, the California Supreme Court considered whether the single use of a racial slur by a non-supervisor, in a private office with no other witnesses present, was sufficiently severe or pervasive to alter Bailey’s working conditions and, if so, whether the City took immediate and appropriate corrective action in response.

In its analysis, the California Supreme Court noted that, unlike FEHA discrimination claims, which address only explicit changes in the terms, conditions, or privileges of employment, harassment claims focus on situations in which the social environment of the workplace becomes intolerable because the harassment communicates an offensive message to the harassed employee. The appropriate evaluation therefore “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.” The Court emphasized that “A rigid distinction between supervisors and coworkers may ignore informal workplace relationships,” and fails to account for a supervisor’s apparent ratification of conduct that could “imbue the subordinate with a certain degree of authority to alter the working conditions of their coworkers.”

The Supreme Court noted that not only did Bailey’s co-worker utter an objectively offensive racial remark, but the co-worker’s relationship with the City’s human resources manager allowed the co-worker to act with a certain degree of impunity, arguably chilling Bailey’s ability to report the conduct. Additionally, because Bailey and her co-worker shared an office and job duties, the California Supreme Court concluded that the totality of these circumstances could be sufficiently severe or pervasive to constitute a hostile work environment when analyzed through the lens of prior rulings involving isolated or single instances of racial slurs in the workplace. Consequently, the California Supreme Court reversed the affirmance of summary judgment for the City, and ordered the Court of Appeal to reconsider the matter within this analytical framework.

What Bailey Means for Employers

Bailey sets a new precedent for evaluating the viability of harassment claims premised on single utterances of racial slurs. Now, even a single racial slur by a non-supervisory employee may, depending on all of the relevant circumstances, result in a finding of liability for an employer. The Court’s decision highlights the importance of clearly defining, and consistently implementing, anti-harassment and retaliation policies, with various avenues for employees to report inappropriate conduct.