Twanda Bailey began working at the District Attorney’s Office in 2001 as a clerk in the records department. The office promoted her in 2011 to an investigative assistant position. Bailey worked alongside Saras Larkin, another investigative assistant. The two sat next to each other in the records room. Bailey is African-American. Larkin is Fijian/East Indian.
On January 22, 2015, while in the records room, Larkin told Bailey that she saw a mouse run under Bailey’s desk. Bailey was startled and jumped out of her chair. Larkin walked up to Bailey and quietly said, “You [N-words] is so scary.” Immediately following this incident, Bailey left her office and told three coworkers what Larkin had said. Bailey was crying and upset. Although Bailey was offended by Larkin’s use of the racial slur, she did not immediately complain to human resources because she feared harassment and retaliation.
This fear was based on Bailey’s understanding that other employees had been harassed and discriminated against following incidents with Larkin. Specifically, Bailey understood that Larkin was best friends with the office’s department personnel officer, Evette Taylor-Monachino, and that Larkin’s actions against other African-American women, Davonne Mark and Sydney Fisher, caused them to be reassigned or to separate from the District Attorney’s Office. In a declaration, Mark attested to the close friendship between Taylor-Monachino and Larkin. Mark had worked in the records room with Bailey and Larkin but stated that she was reassigned after Larkin made false accusations against her.
Nontheless, information about the event was relayed to Sheila Arcelona, the assistant chief of finance and administration. Arcelona and Taylor-Monachino met with Bailey on January 29. Bailey reiterated that Larkin had used an offensive racial slur and confirmed that this was the only time she had heard Larkin use such language. Arcelona informed Bailey that “management would address the issue” and that Bailey should report any inappropriate behavior directly to management.
Arcelona and Taylor-Monachino then met with Larkin, who “did not admit to making the alleged remark.” Arcelona counseled Larkin on the city’s “Harassment-Free Workplace Policy” and informed her that use of the alleged language was “unacceptable.”
Although Taylor-Monachino was the HR representative charged with reporting incidents of workplace harassment to the city’s Department of Human Resources (DHR), she did not file a formal complaint as city policy required. Bailey claimed that that Taylor-Monachino’s conduct towards her had changed after March 23. As a result, Bailey felt she needed to avoid walking past Taylor-Monachino’s office, which was next to the records room where Bailey worked.
On December 30, Bailey filed suit against the City for racial discrimination, racial harassment, retaliation, and failure to prevent discrimination in violation of FEHA. The City moved for summary judgment and the trial court granted that motion and concluded that no trier of fact could find severe or pervasive racial harassment based on being “called a ‘[N-word]’ by a co-worker on one occasion.” In an unpublished opinion, the Court of Appeal affirmed the trial court’s grant of summary judgment. (Bailey v. San Francisco District Attorney’s Office (Sept. 16, 2020, A153520) [nonpub. opn.], as mod. on denial of rehg. Oct. 6, 2020) The California Supreme Court granted review.
The California Supreme Court reversed the judgment of the Court of Appeal in the case of Bailey v. S.F. Dist. Attorney’s Office -S265223 (July 2024)
To prevail on a claim that a workplace is racially hostile under FEHA, an employee must show she was subjected to harassing conduct that was (1) unwelcome; (2) because of race; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.. The parties did not dispute that Larkin’s conduct was unwelcome and because of race. The case therefore considered its severity and the City’s liability.
The standard for workplace harassment claims strikes a “middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 (Harris).) The United States Supreme Court has held: “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview.”
The Court also noted that the “same standard applies to FEHA. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130 (plur. opn. of George, C. J.) ; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.)” Whether a work environment is reasonably perceived as hostile or abusive “is not, and by its nature cannot be, a mathematically precise test.” (Harris, supra, 510 U.S. at p. 22.) “The working environment must be evaluated in light of the totality of the circumstances.”
The City argued that “[a] single race-based comment by a coworker – even when involving a categorically offensive and impermissible term – over a fourteen year period” can be considered neither “pervasive” nor “severe.” Bailey responded that, under prevailing FEHA principles and standards, the Court of Appeal’s holding “that a co-worker’s, as opposed to a supervisor’s, one-time infliction of [a] slur is categorically non-actionable under FEHA . . . is neither compelled nor warranted.” The California Supreme Court agreed with Bailey that “that the Court of Appeal placed undue emphasis on the speaker’s status as a coworker.” Instead it said the “objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.”
“This standard allows that ‘an isolated incident of harassment, if extremely serious, can create a hostile work environment.‘ (Boyer-Liberto v. Fontainebleau Corp. (4th Cir. 2015) 786 F.3d 264, at p. 268, citing Faragher v. Boca Raton (1998) 524 U.S. 775 at p. 788; see U.S. Equal Employment Opportunity Commission, Section 15: Race & Color Discrimination (Apr. 19, 2006) 15-VII Equal Opportunity for Job Success, p. 15-37 (EEOC Compliance Manual) [‘a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation’]; ibid. [‘The more severe the harassment, the less pervasive it needs to be, and vice versa’].).”
The California Supreme Court when on to say in this Opinion “We join the chorus of other courts in acknowledging the odious and injurious nature of the N-word in particular, as well as other unambiguous racial epithets.” “Far from ‘a mere offensive utterance” (Harris, supra, 510 U.S. at p. 23), this slur may be intrinsically ‘humiliating’ depending on the totality of the circumstances (ibid.).”
“We therefore reverse the judgment of the Court of Appeal and remand the cause to that court for further proceedings consistent with this opinion.”
