Stating there is no “magic number of slurs that creates a hostile work environment,” the Supreme Court in Bailey v. San Francisco District Attorney’s Office today holds that a Black employee might have legitimate claims under the California Fair Employment and Housing Act for harassment and retaliation based on a co-worker once calling her the N-word and her employer’s human resources manager’s attempt to block her from pursuing her claims.
The court says it “join[s] the chorus of other courts in acknowledging the odious and injurious nature of the N-word in particular, as well as other unambiguous racial epithets.” “The N-word,” the court states, “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.”
The unanimous opinion by Justice Kelli Evans concludes 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.” The appropriate evaluation “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 also finds “a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace [could be] actionable in a claim of retaliation.”
The court reverses the unpublished opinion of the First District, Division One, Court of Appeal, which, in affirming a defense summary judgment, found it significant that the slur was spoken by a co-worker, not a supervisor. The Supreme Court says “the status of the speaker may be a ‘significant factor’ in assessing the severity of harassing conduct[,] . . . [b]ut it must be considered, not as a defining element, but as part of the totality of the circumstances.”
The court also backs away from this partial sentence, which it calls dictum, in its plurality opinion in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 147, fn. 9: “although a single use of a racial epithet, standing alone, would not create a hostile work environment . . . .” The court today disapproves a “reading” of the statement that would “stand for the proposition that the isolated use of a racial epithet cannot constitute actionable harassment.”
More about the Bailey case here. Horvitz & Levy filed an amicus curiae brief supporting the defendants.
