In Bailey v. San Francisco District Attorney's Office (2024), the California Supreme Court addressed crucial questions about racial harassment and retaliation under the Fair Employment and Housing Act (FEHA). Specifically, the Court delved into whether a one-time use of a racial slur can be severe enough to create a hostile work environment and what actions by employers might constitute retaliation against employees who report such behavior. The Court's decision not only clarifies the legal standards for harassment and retaliation claims but also underscores how a single, offensive remark can be enough to trigger significant legal protections and obligations.

Twanda Bailey, an African-American employee at the San Francisco District Attorney's Office, alleged racial harassment and retaliation after reporting the harassment. She began working at the District Attorney's Office in 2001 and was promoted to an investigative assistant position in 2011. Bailey worked alongside Saras Larkin, another investigative assistant. On January 22, 2015, Larkin used a racial slur (“N-word”) directed at Bailey, which Bailey reported to her coworkers. However, Bailey hesitated to file a formal complaint due to fear of retaliation.

After Bailey ultimately reported the incident, HR manager Taylor-Monachino allegedly obstructed Bailey's attempts to file a complaint, engaged in intimidating behavior, and ultimately threatened her. Bailey reported experiencing severe anxiety and depression due to the harassment and hostile work environment.

Bailey then filed a lawsuit against the City of San Francisco, alleging racial harassment and retaliation. The trial court granted summary judgment for the City, finding that Bailey had failed to make a prima facie case for her claims under FEHA. The Court of Appeal affirmed this decision, and Bailey sought review from the Supreme Court of California. Upon review, the Supreme Court reversed the lower courts' decisions.

First, the Court determined whether a single instance of using a racial slur could be actionable under FEHA. The Court concluded that an isolated incident could indeed be severe enough to alter the conditions of employment and create a hostile work environment, depending on the totality of the circumstances. The Court emphasized that the context and impact of the harassment must be considered from the perspective of a reasonable person in the plaintiff's position. Specifically, the Court recognized the unique harm inflicted by the use of an unambiguous racial epithet like the "N-word," acknowledging its historically demeaning and degrading connotations. The Court held that even a single, severe incident can meet the threshold for harassment under FEHA.

Next, the Court examined whether Taylor-Monachino's conduct constituted retaliation. The Court found that obstructing Bailey's attempts to file a complaint and engaging in intimidating behavior could be considered retaliatory. The Court found triable issues of fact regarding whether the City failed to take appropriate corrective action and whether Taylor-Monachino's actions adversely affected Bailey's employment. The Court emphasized that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all circumstances.

It is important that employers understand that even a single incident of severe harassment, such as the use of a racial slur, can be actionable. Employers should ensure that their HR personnel handle complaints of harassment and retaliation appropriately and without obstruction. Failure to do so can result in costly liabilities.

Employees should also be aware that they are protected under FEHA from racial harassment and retaliation. They have the right to report harassment without fear of retaliation. As the California Supreme Court has highlighted, employees can seek legal recourse even if the harassment involves a single, severe incident.