While Simon Biles and Kate Ledecky have been breaking records, our state Supreme Court has been busy. In the case of Twanda Bailey v San Francisco District Attorney’s Office, on July 29, California’s highest court held that one racial slur by a co-worker can constitute unlawful harassment under California’s Fair Employment & Housing Act (FEHA). The Court held that an isolated act of harassment can be actionable under FEHA if it is severe enough “in light of the totality of the circumstances,” and the single use of “an unambiguous racial epithet” can meet that standard.
In the instant case, Ms. Bailey reported her complaints of her co-worker’s comment to Human Resources, who ultimately declined to investigate after concluding “the allegations were insufficient.” The Court record also noted that Human Resources scolded Ms. Bailey not to discuss the issue with others lest she create a hostile environment for her co-worker, and threatened Ms. Bailey that “she was going to get it.”
A few factors contributed to this holding. First, the slur in question involved “the N-word.” “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,” the Court wrote. “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.”
In addition, it appeared that Ms. Bailey did take the complaint to management, but that HR fumbled it after that. This case will ultimately go to the jury to confirm what happened, but assuming the allegations are true, the HR department here not only mishandled the investigation, but it also retaliated in response.
The Bailey case is an example of “bad facts” making law. The comment in issue involved a particularly offensive term. Then, the organization’s response was just bad. In response, we now have a California Supreme Court case holding that as a matter of law, an isolated comment can be grounds for a racial harassment case.
As employers, we have a few take-aways from this decision. It should go without saying, but I’m going to emphatically remind everyone, take ALL allegations of racial, sexual, religious, and other unlawful harassment seriously. In this case, the Human Resources department brushed off Ms. Bailey’s complaints as having “insufficient evidence.” Acts of harassment often occur without “witnesses.” The lack of direct corroboration from third parties does not mean that harassment did not occur, or that the employer’s obligation to investigate is abated. There may be others who have witnessed similar statements or experienced similar conduct, and the employer has a legal requirement to keep kicking those tires. But even in circumstances where third parties may be scarce, the employer has an obligation to determine credibility based on the interviews of the accuser and accused. Many factors go into the credibility analysis, including body language, motives, inconsistent statements, prior conduct, and more. There is no evidence in the Bailey record to suggest that their HR team engaged in this assessment at all. If they had, they should have cited to their credibility evaluation, the conclusions they reached, and the basis for their findings.
In this case, the statement was reported directly to Human Resources, but often, we see allegations that a manager knew about the harassment and failed to act. Effective management training is KEY, and I’m talking about REAL training. You cannot sit your managers in front of a computer screen once every two years and expect them to learn how to handle these nuanced situations. We need to be teaching our managers how to properly manage, in all aspects of management. Managing is not intuitive, knowing California law even less so.
In this case, there was no doubt that the comment in question crossed the line. But in many cases, it’s the employer’s response to the alleged harassment that becomes the focus of a lawsuit. Make sure your managers know how to respond if they witness offending behavior. Make sure they know to elevate it to the attention of upper management/human resources, even if a “formal complaint” is not made. Once you all become aware of this issue or complaint, conduct a full and complete investigation. Do not hesitate to reach out to us to make sure the investigation is conducted and documented properly. This is what we do.
