California: One Racial Slur May be Severe Enough to Constitute Harassment
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APPLIES TO All Employers with Employees in CA |
EFFECTIVE July 29, 2024 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion
In Bailey v. San Francisco District Attorney’s Office, the California Supreme Court said that the one-time use of a racial slur may be sufficient to claim harassment under the Fair Employment and Housing Act (FEHA). There, an African-American employee alleged that a coworker called her the “N-word.” After she reported this incident, the human resources manager intentionally failed to file the complaint as required and allegedly engaged in intimidating conduct.
The Court said that an isolated act of harassment may cause a claim if it is sufficiently severe in light of the totality of the circumstances. Allegations of a racially hostile workplace must be viewed “from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” Here, a coworker’s use of an unambiguous racial epithet, such as the N-word, may be sufficient to cause a harassment claim. The court considered the closeness in physical proximity in which the plaintiff and co-worker worked, as well as the co-worker’s potential relationship with the personnel officer, as factors in the overall circumstances under which the slur occurred.
Additionally, intentional action taken by a co-worker to remove an employee’s means of reporting and addressing racial harassment in the workplace may be the basis of a retaliation claim. Retaliatory acts may take the form of “a series of subtle, yet damaging, injuries;” each act is not required to separately constitute an adverse employment action in and of itself. The Court clarified that its opinion does not say that an employer’s mere inaction (e.g., the failure to investigate a claim of racial harassment or take corrective action) — which separately may bear on the employer’s liability for the harassment itself — constitutes an act of retaliation.
Action Items
- Implement clear harassment and retaliation reporting procedures.
- Strictly enforce harassment prevention policies.
- Have all personnel trained on harassment prevention.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase