Single Use of Racial Epithet by Coworker Insufficient for Suit

Employment Law

The one-time use of a racial epithet by a coworker was not enough to sustain a hostile work environment suit brought by a former employee of a district attorney’s office, a California appellate court has ruled.

An investigative assistant in the San Francisco District Attorney’s Office, Twanda Bailey, claimed that after a mouse ran through the records room in 2015 and startled her, a coworker said, “You n*****s is so scary.” Bailey was deeply offended but did not report the incident to human resources because she feared retaliation (her coworker had a close relationship with the HR director). However, she did tell other colleagues, and management became aware of the incident. The coworker denied making the remark but was told that the use of racial epithets was not acceptable in the workplace.

Bailey alleged that she felt the HR director treated her differently after the incident, and she filed a harassment claim; she later went on leave and filed suit against the DA’s office. She alleged causes of action under the Fair Employment and Housing Act (FEHA) for racial discrimination and harassment, retaliation for having made a complaint, and failure to prevent discrimination.

A trial court granted the DA’s office’s motion for summary judgment, and Bailey appealed.

The appellate court affirmed that a violation of the FEHA does not occur unless the harassing behavior was sufficiently severe or pervasive to alter the conditions of the victim’s employment. While the incident was “highly offensive,” no triable issue of actionable harassment arose based on the single epithet uttered by a coworker, the court said.

The panel recognized that a single racial epithet can be so offensive as to give rise to a triable issue, with case law on the issue codified by the California legislature in 2019: “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”

“Thus, the question is not whether a single, particularly egregious epithet can create a hostile work environment—under certain circumstances, it can,” the panel wrote. “Rather, the pertinent question is whether the single alleged racial epithet made by Bailey’s co-worker was, in context, so egregious in import and consequence as to be ‘sufficiently severe or pervasive to alter the conditions of [Bailey’s] employment.’”

The panel made an important distinction between racial epithets uttered by supervisors—which are commonly considered more serious because they are inherently vested with the employer’s authority—and those made by coworkers. In measuring the severity of harassing conduct, the status of the harasser can be a significant factor, the court said. A supervisor’s power and authority invests the harassing conduct with a particularly threatening character, while courts have recognized that a single offensive act by a coworker is not enough to establish employer liability.

“In fact, Bailey did not in the trial court, nor has she on appeal, cited to any case holding that a single, albeit egregious, racial epithet by a coworker, without more, created a hostile work environment,” the panel wrote. “We therefore agree with the trial court that ‘no reasonable trier of fact could reach [the] conclusion’ ‘that her coworker’s single statement … , without any other race-related allegations, amounted to severe or pervasive racial harassment.’”

The court reached a similar conclusion on Bailey’s claims of retaliation and that the defendant failed to take corrective action, affirming summary judgment for the DA’s office.

To read the decision in Bailey v. San Francisco District Attorney’s Office, click here.

Why it matters: The panel’s decision appears to be the first to cite the recent FEHA amendment clarifying that a single act of harassment may form the basis of a hostile work environment claim. While the court recognized the updated law, it distinguished Bailey’s case because the alleged harasser was a coworker and not a supervisor.



pursuant to New York DR 2-101(f)

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