One instance of a coworker directing the “N-word” to a Black employee can rise to the level of being so severe as to make for a racially hostile work environment in violation of the California Fair Employment and Housing Act (“FEHA”), the state Supreme Court recently ruled.  The case is a valuable reminder for employers of mistakes not to make in evaluating harassment allegations.

The California Supreme Court’s decision in Bailey v. San Francisco District Attorney’s Office involved two investigative assistants in the District Attorney’s Office.  The Plaintiff was Black, and her coworker was not.  On one occasion, the coworker told the Plaintiff that she saw a mouse run under the Plaintiff’s desk.  Plaintiff “was startled and jumped out of her chair,” the Supreme Court wrote. The coworker then “walked up to [Plaintiff] and quietly said, ‘You ‘N-words’ is so scary.’”  Plaintiff immediately left her office and – “crying and upset” — told three coworkers what the coworker had said.   

The Plaintiff eventually complained.  The employer found the allegations to be too insignificant to justify an investigation. 

Eleven months after the incident, Plaintiff sued the D.A.’s office and the City of San Francisco for harassment in violation of FEHA alleging that she had been subjected to a work environment that was hostile to her on grounds of her race.  Plaintiff alleged that the “N-word” had been used once in her more than 14 years on the job.  She did not allege any other racially motivated mistreatment. 

After a course of litigation, the city moved for summary judgment on grounds including that the “N-word” being used once did not amount to sufficiently severe or pervasive mistreatment as to constitute a claim of harassment under FEHA.  The trial court agreed, granted the motion, and dismissed the harassment claim.  The Court of Appeal affirmed.

In a forceful opinion, the California Supreme Court reversed and sent the harassment claim back for trial.  The errors the Supreme Court found in the Court of Appeal’s analysis are valuable reminders to employers of mistakes not to make in addressing complaints of harassment.

1. Do not Place Undue Weight on the Fact that an Accused is not a Supervisor.

The Court of Appeal “placed great emphasis,” according to the Supreme Court, on the fact that the employee who allegedly used the “N-word” was a coworker and not a supervisor, that is, not a person with authority over the plaintiff.  The appellate court found that fact to be “dispositive” of the harassment claim, that is, reason enough to sack the claim, as they did.

In reversing the Court of Appeal, the Supreme Court, first, grounded its thinking in the fact that it is discrimination claims under FEHA that arise bias in a supervisor or manager’s “exercise of official actions on behalf of the employer” while harassment claims do not require an exercise of the employer’s authority over the alleged victim.  Rather, the Supreme Court noted, unlawful harassment under FEHA consists of “bias expressed . . . through interpersonal relations in the workplace” and whether expressed by a line employee or a supervisor.  Consequently, “harassment claims may be predicated on conduct by supervisors and coworkers alike.”   

While the Supreme Court acknowledged that the alleged harasser’s rank in the workplace may be a factor in assessing the severity of alleged harassment, the Court wrote that it is not a determinative one and must, instead, be considered “as [one] part of the totality of the circumstances.”

2. Do not Dismiss Alleged Harassment Solely Because It Happened “Only” Once.

The Court of Appeal viewed the coworker’s use of the “N-word” as an event that could not make for severe or pervasive racial harassment because the word was used once and not again. 

The Supreme Court vigorously disagreed.  In an important cautionary note to employers, the Supreme Court wrote that there is no “magic number of slurs” that is needed to create an actionable harassment claim. 

The Court then went to extensive lengths to unpack and explain the brutal blow that the “N-word” inflicts.  “Far more than a mere offensive utterance, the ‘N-word’ is pure anathema to African Americans.”  The word “evokes a history of racial violence, brutality, and subordination” and is “intrinsically humiliating,” “beyond . . . highly offensive and demeaning,” and “like receiving a slap in the face,” the Court wrote, in part.  Use of the word “automatically separates [the victim] from every non-black person” in the workplace.

Further, in cases of racial harassment under FEHA, the alleged harassment must be viewed from the perspective of a reasonable person “belonging to the racial or ethnic group of plaintiff,” the Supreme Court reminded us.  Evaluating the severity of alleged harassment from that perspective may expose dimensions of the mistreatment that “may be overlooked if considered solely from the perspective of a [person] belonging to a different group than the plaintiff,” the Court wrote.

3. Consider the Alleged Harassment in the Totality of the Circumstances.

Finally, the Supreme Court found significant facts in the case that the Court of Appeal overlooked, including that:

— the word used is “an unambiguous racial epithet.”

— the word was directed at Plaintiff, not simply overheard by her.

— a jury could find the accused’s use of the word “scary” in the phrase, “You ‘N-words’ is so scary” to have intensified the demeaning and frightening nature of the “N-word” as used.

— Plaintiff shared an office with the accused and she and the accused were required to cover one another’s duties when one was out such that it was “not possible” for Plaintiff to separate herself from the accused, and

— the accused was a close friend of the Personnel Director of the office where Plaintiff and the accused worked.  A jury could conclude from Plaintiff’s evidence that the accused had interfered earlier with the employment of two other Black employees with impunity because the accused was protected by the Personnel Director.

Ultimately, the Supreme Court concluded that there existed a triable issue of fact whether the single use of the “N-word” was, when considered in the totality of the circumstances, sufficiently severe to constitute a racially hostile work environment and sent the harassment claim back to the trial court for trial. 

Closing

In Bailey, the employer, the trial court, and the Court of Appeal each got it wrong — at each step, the decisionmakers failed to comprehend the full range and depth of the alleged harassment and its potential consequences in the circumstances.  The Supreme Court’s decision is an important reminder to employers, HR personnel, and employers’ counsel not to minimize alleged harassment based on their own life experience but, instead, to take the time and invest the effort to understand the potential impact of the alleged mistreatment on a reasonable person in plaintiff’s shoes.  Failing to take those steps risks exposing the employer to significant liability.

For questions, please reach the author or your Fox Rothschild LLP attorney.

The California Supreme Court’s opinion in Bailey v. San Francisco District Attorney’s Office may be found HERE.

This post provides general information and does not constitute legal advice to any person.  This post does not create an attorney-client relationship with any person.