One racial slur uttered by an employee could be enough to land an employer in court facing potentially big payout for subjecting someone to a hostile workplace under California law, the California Supreme Court has ruled.
On July 29, the state high court ruled unanimously that a black female employee of the San Francisco District Attorney's office can press her claims against SFDA and the city of San Francisco after a co-worker of Pacific Islander descent called her a "N-----" and that co-worker's friend in the human resources department allegedly retaliated against the woman for reporting the remark.
The ruling was authored by Justice Kelli Evans.
"... We conclude that an isolated act of harassment is actionable if it is sufficiently severe under 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," Evans wrote in the court's opinion.
In a statement responding to the ruling, the office of San Francisco City Attorney David Chiu said the city is considering its options in light of the decision.
“San Francisco does not condone or tolerate the use of the language at issue in this case. The City has always recognized the seriousness of this situation, which is why City managers and HR professionals took immediate, corrective action," said SF City Attorney spokesperson Jen Kwart. "We are disappointed that those corrective actions were not enough for the Court. We are reviewing the decision and will take any appropriate next steps.”
The case, filed by plaintiff Twanda Bailey, landed in San Francisco County Superior Court in 2015.
According to court documents, Bailey worked in the SFDA's office, beginning in 2001 as a records clerk. She was promoted to an investigative assistant position in 2011. At that time she began working with another SFDA employee, identified as Saras Larkin, who court documents identify as a "Fijian/East Indian."
According to court documents in January 2015, Bailey leaped out of her chair in fright after Larkin allegedly told her there was a mouse under her desk. That prompted Larkin to allegedly remark quietly to Bailey that "You [N-words] is so scary."
Bailey allegedly was "crying and upset" following the alleged incident, and immediately told three co-workers what Larkin allegedly said. However, she allegedly did not file a report with HR until weeks later.
According to the complaint, she was reluctant to do so, because she claims Larkin had a close, beneficial relationship with a woman identified as Evette Taylor-Monachino, identified as a manager in the HR office, who was responsible for receiving and processing such workplace harassment complaints.
According to the complaint, Bailey believed Larkin had allegedly similarly harassed other black employees in the SFDA office, but those complaints had allegedly resulted in others being reassigned or "separated" from the office.
According to the complaint, Bailey's supervisor eventually learned of the alleged incident and helped her report the incident to HR.
According to the complaint, the incident was investigated, but Larkin denied making the alleged remark.
Then, Bailey asserts Taylor-Monachino allegedly refused Bailey's request to file a formal complaint against Larkin and warned her doing so could result in Bailey creating a "hostile work environment for Larkin and Larkin's work could be 'messed with.'"
In following months, Bailey claimed "Taylor-Monachino's conduct toward her changed" and allegedly included some perceived threats from Taylor-Monachino, allegedly including an incident in which the HR manager allegedly "threatened Bailey that she was 'going to get it.'"
Bailey further alleged Taylor-Monachino dinged her employee review as a result of her accusation against Larkin.
Bailey filed suit against the SFDA's office and the city of San Francisco, asserting they should pay for allegedly allowing her to be subjected to a hostile workplace and harassment, allegedly in violation of the California Fair Employment and Housing Act, and for allegedly allowing the alleged retaliation.
The city in response argued the case should be dismissed. They argued one use of a racial epithet does not amount to a "severe" and "pervasive" hostile environment.
And they noted city officials did not ignore Bailey's claims and took action. Further, they noted Bailey did not suffer any adverse employment effects, such as demotion, reassignment, termination or any loss of income or job duties.
Those arguments carried the day in the lower courts, where a San Francisco Superior Court judge and the California First DIstrict Appellate Court all agreed that Bailey's lawsuit should end.
But at the Supreme Court, the high court justices said the "totality of the circumstances" surrounding Bailey's case should mean the lower courts were too hasty to toss Bailey's lawsuit.
"To be clear, our opinion today does not hold that an employer’s mere inaction (e.g., the failure to investigate a claim of racial harassment or take corrective action) — which separately may bear on the employer’s liability for the harassment itself — constitutes an act of retaliation," Justice Evans wrote.
"... The instant claim of retaliation, however, is not based on mere inaction. It is based on an HR manager’s purposeful obstruction of Bailey’s complaint, which included an admonition that Bailey might create a hostile work environment for her harasser if she persisted...
"... Where a supervisor or other person of authority obstructs and threatens to punish a reporting employee if she persists in bringing a complaint to higher level officials, such acts may be considered by a jury to constitute actionable retaliation."
The justices overturned the lower courts' decisions dismissing Bailey's lawsuit and sent the case back to the trial court for further proceedings.
Bailey is represented by attorneys Daniel Ray Bacon and Robert L. Rusky, of the Law Offices of Daniel Ray Bacon, of San Francisco.
Attorney Stacy Villalobos, of Legal Aid at Work, of San Francisco, also argued in support of Bailey's position.
The city has been represented by Chiu and attorneys from his office.