One day, while at work at the San Francisco District Attorney’s Office, Saras Larkin told her Black co-worker, Twanda Bailey, that she saw a mouse run under Ms. Bailey’s desk. Ms. Bailey was startled and jumped out of her chair. Ms. Larkin, who is Asian-American, then mocked her, saying “You [N-words] is so scary.”
Crying and upset, Ms. Bailey immediately left her office and told three coworkers what Ms. Larkin had said. Although Ms. Bailey was deeply offended by Larkin’s use of the racial slur, she did not immediately complain to human resources because she feared harassment and retaliation. Her fears were well-founded. When she did report the incident a few months later, HR initially refused to accept her complaint, and then dismissed it without investigation, telling her in a letter that while DHR acknowledged “the extreme offensiveness of the ‘N’ word,” that one comment was insufficient to create an illegal hostile working environment.
Ms. Bailey sued, and two lower courts agreed with the DA’s Office that one act of harassment by a co-worker did not create an hostile working environment. But, in July, 2024 ruling, the California Supreme Court revived Ms. Bailey’s racial harassment case, finding that her co-worker’s one-time use of a racial slur may indeed have been so severe that it created a hostile work environment. The unanimous ruling held that a co-worker’s use of an unambiguous racial epithet “may be found to suffice,” since an isolated act of harassment could be actionable under the California Fair Employment and Housing Act if it is “sufficiently severe in light of the totality of the circumstances.”
While there are other state and federal cases holding that one remark by a supervisor could create an illegal hostile environment, this appears to be the first time that a court has ever held that a coworker’s single use of an unambiguous racial epithet, such as the N-word, can constitute actionable racial harassment. There is not “a magic number of slurs that creates a hostile work environment,” said the opinion.
The California Supreme Court noted that in some work environments, employees rarely interact with their supervisors but do work closely with colleagues. There, co-workers may find that harassment by their colleagues “more quickly alters the conditions of their employment than harassment by a supervisor,” said the court. “A rigid distinction between supervisors and coworkers may also ignore informal workplace relationships; not all power appears on an organizational chart.”
The opinion also stresses the “highly offensive and demeaning” nature of what was said to Ms. Bailey: “The N-word carries with it, not just the stab of present insult, but the stinging barbs of history, which catch and tear at the psyche the way thorns tear at the skin.”
What this means to you:
The Bailey decision is an important extension of California employment law, expanding the scope of what constitutes a hostile work environment. Obviously, employers should be taking steps to align their policies and practices with this ruling to foster a safe and respectful workplace environment.
Take a look at your organization’s policies. Do they clearly tell employees that even a single incident can violate policies and the law? Is the reporting process open and easily accessible?
Take a look at your organization’s procedures. Do you respond promptly to all complaints of harassment? Do you perform thorough investigations and take appropriate disciplinary action when warranted?
Take a look at your training programs. Do you conduct engaging, interactive training sessions for employees and management, so they will learn how to recognize and appropriately respond to bullying, harassment, and other inappropriate workplace conduct? Do you educate workers and managers about the dangers of retaliation?
At Fair Measures our workplace harassment prevention training programs teach your managers and employees about workplace harassment prevention, bullying prevention, discrimination prevention and bystander training to keep your workplace a great place to work.
The key learning points of all Fair Measures training programs are easily remembered because we make our trainings fully interactive. We use videos, case studies, polls questions and extensive Q&A to help participants learn about laws and company practices for harassment prevention to help them create and maintain a respect-filled workplace for all.
Find out more about our national HR training programs or book a workshop by calling 800-458-2778 or emailing us at send us an email!
Updated 09-09-2024
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
