By Jennifer Lippi, JD, SPHR, PHRca
Under the California Fair Employment and Housing Act (‘FEHA”), unlawful harassment is “unwanted and unwelcome” conduct based on a protected characteristic. The conduct must be so “severe and pervasive” that it alters the terms and conditions of employment and creates a hostile work environment. In July of this year, the Supreme Court of California in Bailey v. San Francisco District Attorney’s Office, held that a single use of the “N-Word” can be sufficiently severe and pervasive to support a harassment claim under FEHA.
The Facts:
Twanda Bailey, who is African American, worked at the San Francisco District Attorney’s office. She alleged that a coworker, Saras Larkin, who shared Bailey’s office and job duties, called her the N-word. Larkin claimed a mouse ran under Bailey’s desk. Bailey was frightened and jumped out of her chair, and Larkin responded, “You [N-Words] is so scary.” Bailey informed several co-workers about the incident but did not complain to Human Resources (“HR”) right away because she feared harassment and retaliation from the HR Manager, who had been accused of harassment and retaliation by other African American employees who reported incident(s). A co-worker eventually reported the incident, but the department’s Personnel Officer failed to file a formal complaint with HR.
The Lawsuit:
On December 30, 2015, Bailey filed suit against the city of San Francisco for several FEHA-related claims, including harassment, discrimination and retaliation. The trial court dismissed the harassment claim, concluding that an isolated incident of the N-Word was not sufficiently severe or pervasive to constitute harassment. The Court of Appeal agreed with the trial court and Bailey appealed the decision to the California Supreme Court.
The Decision:
The California Supreme Court disagreed with the lower courts and reversed. The court focused on harassment claims being evaluated based on a “totality of the circumstances” and whether a “reasonable person” in Bailey’s position would find the single use of the N-Word by a co-worker to be severe enough to create a hostile work environment. The City’s argument was that although offensive, the single use of the N-Word over a 14-year period does not rise to the level of severe and pervasive. The Supreme Court disagreed, in most part because of the history and extreme offensiveness of the epithet. Specifically, the court stated, “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.” Therefore, the court reasoned that “this slur may be intrinsically ‘humiliating’ depending on the totality of the circumstances.” Based on the totality of the circumstances, the court found that a reasonable person (remember that “reasonable person” standard?) could find one utterance of the slur so offensive as to affect the terms and conditions of employment and create a hostile work environment.
Key Takeaways:
Employers should implement and uphold a policy prohibiting any conduct related to an employee’s protected class and are required to investigate and take corrective action when such behavior occurs. Effective and targeted training for employees of all levels is a must. While the state requires harassment prevention training, employers should ensure their training is effective and they are not simply going through the motions.
A copy of the Bailey decision can be found here.