Recently, the California Supreme Court found that a plaintiff’s claim based on a single (disputed) racial epithet by a non-supervisory coworker was sufficient to form the basis of a hostile work environment claim—it was sufficiently severe even though not pervasive.

Many employers know the legal definition of harassment, and that not all workplace strife constitutes harassment. To be legally actionable harassment, there must be unwelcome conduct that is severe or pervasive enough that no reasonable person would tolerate. A “hostile work environment” claim largely involves the same conduct, wherein this severe or pervasive conduct occurs to a level that fundamentally alters the workplace. Key to that definition is the disjunctive “or”: the conduct must be either severe or pervasive.

The facts of this case are (like most employment cases) messy, detailed, and critical to the analysis and result. The plaintiff, Twanda Bailey, a black woman, was employed in an office role with the San Francisco D.A.’s office beginning in 2001. In 2015, her coworker, an East Indian woman, uttered the “N-word” quietly toward Bailey. (The coworker disputed this)¹. Bailey immediately reported this to her coworkers, and a day later her supervisor was informed of the incident. What followed was a failure to document the complaint by the employer’s HR, failure to respond to Bailey’s ongoing complaints, and alleged hostility from a supervisor who was purportedly close friends with the coworker who uttered the slur. This culminated in an alleged confrontation in the employer’s parking lot, where the supervisor allegedly said “you are going to get it” to Bailey. The supervisor and the coworker had, according to Bailey, been instrumental in “interfering” with the employment of two other black female employees. Bailey took several weeks off work due to medically documented psychological issues during this time, including a six-week period for “severe workplace stress.” The coworker who allegedly uttered the racial slur was friends with the supervisor who confronted Bailey. Bailey also alleged that other black females had been treated adversely by the coworker and supervisor, working in concert.

Eventually, a higher supervisor became involved. This supervisor transferred the coworker who uttered the slur and created a new HR position reassigning duties from the lower supervisor/friend of the coworker. This higher supervisor also testified that Bailey had come to his office several times visibly upset and in tears. About 11 months after the alleged slur was uttered, Bailey filed her lawsuit.

The trial court dismissed Bailey’s complaint on the basis that a single utterance of a racial slur, although abhorrent, was insufficient to fundamentally alter the working environment—particularly when that slur was from a non-supervisory coworker. The appellate court affirmed. The Supreme Court reversed. The court first noted that several courts had found that a racial slur is of such a severity that it need not be pervasive: a single utterance can be enough to alter the working environment in certain circumstances. These state and federal courts have found that a racial slur uttered by a supervisor has (unsurprisingly) fundamentally altered the workplace with regard to the person against whom it was uttered. While no decision was cited wherein a nonsupervisory coworker’s single slur altered the workplace, the court found that the circumstances here could lead a jury to this conclusion. The court considered not only the slur, but the circumstances that existed at the time it was uttered. This included the fact that the coworker was good friends with the investigating supervisor, Bailey believed the coworker was protected, Bailey believed the coworker and supervisor had adversely affected two other black female coworker’s positions, and Bailey exhibited undisputed psychological symptoms she attributed to the slur. While these symptoms could arguably be tied to the employer’s response to the slur and subsequent complaint, the court found a reasonable jury could also conclude that Bailey’s symptoms were caused by the slur itself. With regard to the severity issue, the court expounded at length regarding racial slurs:

The court rejected a bright line rule that a single slur by a nonsupervisory coworker was insufficient to give rise to a hostile work environment claim. Given the conduct and the accompanying factors, the court concluded that a triable issue existed as to whether the slur in light of the surrounding circumstances was severe enough to fundamentally alter the working conditions of Bailey.

While this decision is precedential only as applied to California Fair Employment and Housing Act (FEHA) claims, it will almost certainly be relied on to persuade other jurisdictions to adopt a similar threshold for evaluating when one-off instances are sufficient to support a hostile work environment claim. Furthermore, given the subject matter of these types of claims (i.e., vulgar slurs based on protected classes), it is likely that other jurisdictions will adopt this lower threshold rather than seemingly excuse or minimize such behavior.

Another takeaway for employers is the extent to which the employer’s subsequent actions supported this result. The court was careful to explain why the slur and context at the time of the slur were all that was necessary to create a question as to whether the working environment was fundamentally altered. However, the facts demonstrate that the employer’s response to the slur almost certainly contributed to Bailey’s perception of hostility in the workplace, compounded her damages, and clearly led her to file an avoidable lawsuit. While the court did not say as much, it is obvious that the employer’s inconsistent, hostile, and inadequate response helped the court arrive at its conclusion. Further, had the employer responded quickly and appropriately, it would have undercut the contextual factors (favoritism, prior adverse treatment to others in the same protected class, psychological damages) the court referenced in determining this single slur provided adequate foundation to the claim.

Key Takeaways for Employers

1. Be sure to investigate and document ALL complaints of harassment and discrimination, even if the complaint is only alleged use of a single offensive term or slur one time.
2. Be sure to inform the complainant that the complaint is being investigated, and then return to the complainant to inform the complainant when the investigation is completed; failure to investigate and report back to the complainant can compound the problem.
3. Employers should keep in mind that even a single severe incident of discriminatory conduct, if not adequately addressed, may give rise to a claim.

¹ This case was dismissed by the trial court upon summary judgment and affirmed by the appellate court. The Supreme Court reversed, construing the facts in a light most favorable to the plaintiff. Unproven and disputed allegations are not for the court to decide, and therefore, in the court’s view, the plaintiff’s allegations must be construed as true when considering dismissal at this stage.