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California Supreme Court clarifies employer responsibilities on harassment and retaliation 

8/1/24

By: Christopher J. Fleissner

In the recent California Supreme Court case of Bailey v. San Francisco District Attorney’s Office, the court examined critical issues related to workplace harassment and retaliation under the Fair Employment and Housing Act (“FEHA”) [Gov. Code, §§ 12920, et seq.]. 

This decision underscores the importance of preventing and addressing even isolated incidents of racial harassment and provides clarity on what constitutes an adverse employment action in retaliation claims. Employers should take note of this ruling to ensure their policies and practices are in compliance with legal standards and to foster a safe, respectful work environment. 

Relevant Facts 

An African-American employee at the San Francisco District Attorney’s Office worked alongside a coworker who used a racial slur towards the employee, specifically referring to her using the N-word. Distressed, the employee reported the incident to other coworkers but did not immediately file a complaint with Human Resources due to fear of retaliation​​. 

The employee eventually attempted to report the incident to HR, but faced obstruction and intimidation from the HR manager, who threatened her and hindered the formal complaint process. The employee alleged this conduct amounted to retaliation​​. 

Reasoning 

The Supreme Court addressed two significant issues: whether a co-worker’s one-time use of a racial slur could constitute actionable harassment under FEHA, and whether obstructive conduct by HR could amount to retaliation. 

• Harassment Claim: The court clarified that an isolated incident of a racial slur could be sufficiently severe to alter the conditions of employment and create a hostile work environment. This interpretation is contingent on the totality of the circumstances, recognizing that certain words, such as the N-word, carry a historical and offensive weight that can profoundly impact an employee’s work environment​​. 

• Retaliation Claim: The court also examined whether the HR manager’s conduct could be seen as retaliatory. It concluded that obstructing the employee’s ability to file a complaint and threatening her could indeed be considered an adverse employment action under FEHA. Such actions would discourage a reasonable employee from making or supporting a charge of discrimination​​. 

The court reversed the summary judgment previously granted in favor of the County, finding that there were triable issues of fact regarding both the harassment and retaliation claims. It highlighted that the context and severity of the racial slur and the retaliatory conduct by HR warranted a closer examination by a jury​. 

Client Takeaways 

This important ruling provides the following guidance for employers: 

1. Zero Tolerance for Racial Slurs: Employers must understand that even a single use of a severe racial epithet can create a hostile work environment. It is crucial to foster a workplace culture that does not tolerate any form of racial harassment, no matter how isolated the incident may seem. 

2. Robust Complaint Procedures: Ensure that your HR processes are transparent, accessible, and supportive of employees who report harassment. Any attempt to obstruct or intimidate employees from filing complaints can be construed as retaliatory, exposing the organization to significant legal risks. 

3. Training and Awareness: Regularly train employees and HR personnel on recognizing and properly addressing harassment and retaliation. Emphasize the importance of a respectful and inclusive workplace, and provide clear channels for reporting and addressing grievances. 

4. Swift and Appropriate Action: When a complaint is made, take immediate and appropriate action to investigate and resolve the issue. Demonstrating a commitment to addressing harassment and supporting affected employees is vital in maintaining a safe workplace environment. 

By aligning workplace policies with the principles outlined in this ruling, employers can mitigate legal risks and promote a healthier, more inclusive work environment. The Bailey case serves as a critical reminder of the impact that both words and actions can have on the workplace, and the legal responsibilities employers have in preventing and addressing harassment and retaliation. 

For more information, please contact Christopher J. Fleissner at chris.fleissner@fmglaw.com or your local FMG attorney.