Single discriminatory incident can support FEHA lawsuit

Can a single incident of racial discrimination be enough to support a claim for violations of the Fair Employment and Housing Act (FEHA)?

Yes, the California Supreme Court ruled unanimously.

Twanda Bailey, an African-American woman, alleged that Saras Larkin, a colleague with whom she shared an office and shared responsibilities, approached her and quietly said, “You [N-words] “It’s so scary.”

Bailey was crying and upset and immediately told three colleagues. Although she was offended by the use of the racial slur, she did not immediately complain to human resources because she feared harassment and retaliation.

Specifically, Bailey believed that other employees were being harassed and discriminated against following incidents involving Larkin, who was best friends with the office's human resources representative, Evette Taylor-Monachino, and that two other African-American women had been transferred after she complained about Larkin had.

Another colleague informed human resources about the incident. Taylor-Monachino did not file a formal complaint about it, as city policy required.

When Bailey Taylor-Monachino later asked for a copy of the complaint and was told it did not exist, she requested that a complaint be filed. Taylor-Monachino declined.

After that interaction, Bailey noticed that Taylor-Monachino's demeanor toward her changed, and one morning in the parking lot, Taylor-Monachino mouthed the words, “You'll get it.”

Bailey became increasingly disgruntled at work, requested leave, and then filed a lawsuit against the city of San Francisco for racial discrimination, harassment, and retaliation in violation of FEHA.

The city moved for summary judgment and the court granted the motion, finding that the sole use of the N-word was insufficient to sustain Bailey's claim of racial discrimination. It was also found that no adverse employment actions had taken place.

Bailey appealed. The appeals court affirmed the decision, but the state's highest court overturned the decision.

“[W]”We conclude that a single act of harassment may be criminal if it is sufficiently serious given the totality of the circumstances, and that a colleague's use of a clear racial epithet such as the N-word may be considered sufficient,” wrote the court.

The city argued that a single racist comment from a colleague could not be considered all-encompassing or serious enough to be criminal.

However, the objective severity of the harassment should be assessed from the perspective of a reasonable person in the plaintiff's position, the court said, and while viable hostile work environment claims often involve repetitive conduct, this is not necessary.

The N-word in particular “carries not only the sting of a contemporary insult, but also the stinging barbs of history that strike and rend the psyche as thorns rend the skin,” the court said. “Far from being 'just an insulting statement', this insult can be 'humiliating' in itself, depending on the totality of the circumstances.”

Furthermore, the fact that a colleague – and not a superior – made the insult did not make it any less painful, the court added. While the status of the harasser is a factor in assessing both the severity of the harassing behavior and whether that behavior is attributable to the employer, a strict distinction between supervisor and co-worker does not take into account the entire context of the workplace.

Applying these standards, the court reached a reasonable question of fact as to whether, under the totality of the circumstances, Larkin's one-time use of the N-word was serious enough to create a hostile work environment.

Regarding Bailey's retaliation claim, the court emphasized “the range of conduct that may constitute criminal employment injury and the imperative to consider such conduct collectively and in context.”

The trial court failed to recognize “the nature of.” The behavior through The special action in the context of The workplace,” the court said. “Considering the totality of Bailey's allegations and having regard to the particular circumstances of the employee concerned and the context of her workplace claims, we conclude that a reasonable factual review could conclude that Taylor-Monachino's actions constituted a course of conduct “that rises to the level of a criminal offense.” adverse employment actions.”

Critically, the court said it was important to keep in mind Taylor-Monachino's role in the workplace and the fact that her conduct began with the obstruction of Bailey's complaint.

“[T]“There is a disputed issue of fact here as to whether Taylor-Monachino’s conduct adversely affected Bailey’s terms and conditions of employment by, among other things, depriving Bailey of the right to utilize the human resources process available to other employees,” the court said. Reversal and retention.

To read the statement Bailey v. San Francisco District Attorney's OfficeClick here.

Why it matters

A single act of harassment is criminal if it is serious enough given the overall circumstances and a colleague's use of a clear racial epithet – in this case the N-word – can be considered sufficient, the California Supreme Court has ruled. The unanimous court also emphasized the importance of the fact-specific nature of such cases and the need to consider the factual context in each case.