August 08, 2024 | From HRCalifornia Extra
by James W. Ward, J.D.; Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber

 

Although employees may use the term “harassment” to describe a conflict with someone at work or an uncomfortable work environment, unlawful harassment has a specific legal meaning.

Under California’s Fair Employment and Housing Act (FEHA), unlawful harassment is unwanted and unwelcome conduct that’s motivated by a legally protected characteristic, such as race, gender, age or disability, and is so “severe or pervasive” that it alters the conditions of employment and creates a hostile work environment.

The last part, whether the conduct is sufficiently “severe or pervasive,” is a commonly misunderstood aspect of workplace harassment claims — as is what conduct rises to the level of FEHA retaliation for complaining about workplace harassment.

In a recent decision, the California Supreme Court addressed both of these issues, highlighting how the context of allegedly harassing conduct — the “totality of the circumstances” — can result in a very broad array of actions that may support harassment and retaliation claims (Bailey v. San Francisco District Attorney’s Office, No. S265223 (July 29, 2024)).

In this case, the California Supreme Court held that:

• Just one instance of using the N-word epithet toward an African American coworker may be severe enough to be unlawful racial harassment in violation of the FEHA; and
• Refusing to properly report a complaint of racial harassment followed by aggressive and intimidating behavior toward the complaining employee may be considered an adverse employment action that can support a retaliation clam under the FEHA.

Coworker Uses a Racial Slur

Plaintiff Twanda Bailey, who is African American, started work for the San Francisco District Attorney’s Office in 2001 and was eventually promoted to an investigative assistant position where she worked in the records office next to coworker Saras Larkin. The two knew each other’s duties and were occasionally asked to cover one another’s work. On January 22, 2015, Larkin claimed a mouse ran under Bailey’s desk. Bailey was startled and jumped out of her chair, to which Larkin responded, “You [N-words] is so scary.”

Bailey, crying and upset, left her office and told three other coworkers, but she didn’t immediately complain to human resources because she feared retaliation based on what happened to other employees making harassment claims. She also knew Larkin both had a close friendship with the department’s personnel officer, Evette Taylor-Monachino, who was responsible for receiving workplace complaints, and that Larkin had taken actions against other African American women, causing them to be reassigned or separated from the District Attorney’s Office.

The next day, Bailey’s supervisor, Alexandra Lopes, learned of the incident and went on to report it to the chief of finance and administration, Sheila Arcelona. On January 29, 2015, Arcelona met with Bailey and Taylor-Monachino. During the meeting, Bailey confirmed that the incident was offensive, but that this was the only time Larkin had used such language with her. Arcelona told Bailey that “management would address the issue” and that Bailey should report any inappropriate behavior directly to management.

Arcelona and Taylor-Monachino also met with Larkin, who denied using the epithet. Arcelona counseled Larkin on the city’s “Harassment-Free Workplace Policy” and informed her that use of the alleged language was unacceptable. No further action was taken at that time.

Arcelona raised the possibility of separating Bailey and Larkin, but Taylor-Monachino objected, noting “there was no way to do that without creating the appearance that one or the other had done something wrong[.]”

The Complaint that Never Was

San Francisco city policy required Taylor-Monachino to report the workplace harassment incident to the Department of Human Resources (DHR), but she never did.

On March 23, 2015, a couple of months after the incident, Bailey asked Taylor-Monachino for a copy of the complaint, but was told there was no complaint. When Bailey asked Taylor-

Monachino to file a complaint, she refused. Taylor-Monachino stated that Bailey should not have told her coworkers about the incident with Larkin, that it could cause a hostile work environment for Larkin and that Larkin’s work could be “messed with.”

After this meeting, Bailey alleged that Taylor-Monachino’s behavior toward her changed, such as Taylor-Monachino ignoring Bailey, staring at her rudely, laughing at her, and making a comment that Bailey’s workers’ compensation claim related to the incident wasn’t real. According to Bailey, this behavior was continuous and daily.

No Investigation for You!

On April 17, 2015, the DHR learned of the incident from a source outside the District Attorney’s office and, on May 22, met with Bailey, who recounted the incident and Taylor-Monachino’s subsequent conduct toward her.

On July 22, 2015, the DHR informed Bailey that it declined to investigate the complaint because, although the N-word is extremely offensive, the single use of it was insufficient to create a hostile work environment. Further, Taylor-Monachino’s refusal to file the complaint was not retaliation because Bailey’s complaint had already been reported by her supervisor, Lopes. The DHR asserted that Taylor-Monachino’s other conduct amounted to mere “social slights.”

The Last Straw

On August 12, Bailey reported to Chief Administrative and Financial Officer Eugene Clendinen that around 6:30 a.m., Bailey was waiting in her car for a parking spot outside the office, and Taylor-Monachino pulled up alongside her, rolled down the window, made a gesture Bailey perceived as threatening and saw Taylor-Monachino say “you are going to get it,” though she couldn’t hear the words.

Around 7:30 a.m. that same day, Bailey saw Taylor-Monachino walking toward her in the office and felt so intimidated and threatened that she immediately walked away from Taylor-

Monachino and sat with the front desk personnel until more staff arrived. Bailey also recounted Taylor-Monachino’s behavior since March, saying she felt threatened and intimidated.

Shortly thereafter, on August 20, 2015, Bailey’s psychiatrist provided a letter indicating that

Bailey was being treated for severe anxiety and depression that developed because of workplace stress.

The DHR investigated certain allegations against Taylor-Monachino, including the August 12 car incident. On October 27, Clendinen sent Bailey a letter informing her that an outside investigator couldn’t determine whether the car incident happened, given the evidence; however, the investigation concluded that in a separate incident, Taylor-Monachino violated city policies regarding treatment of coworkers. Subsequently, harassment complaint receiving duties were reassigned to someone else.

Following a meeting on November 9, Clendinen approved Bailey’s request to transfer from the records room to another division on a different floor because, although 10 months had passed since the first incident with Larkin, she was still visibly upset at work, occasionally coming to Clendinen’s office crying.

The Lawsuit

On December 30, 2015, Bailey filed suit against the city of San Francisco for several FEHArelated claims, including racial harassment and retaliation.

The trial court dismissed the racial harassment claim, concluding that no jury could find the single use of the N-word toward her was sufficiently severe or pervasive to be harassment. The trial court also dismissed the retaliation complaint because it concluded Taylor-Monachino’s conduct toward Bailey — which the court said amounted to “social ostracism” — was not an adverse employment action that could sustain the retaliation claim.

The California Court of Appeal agreed with the trial court. Bailey appealed to the California Supreme Court.

California Supreme Court Decision

The California Supreme Court disagreed with the lower courts on both the harassment and retaliation claims, concluding that:

• A coworker’s use of an unambiguous racial epithet may be sufficiently severe to constitute harassment; and
• Taylor-Monachino’s course of conduct — specifically refusing to file the harassment complaint, or, in the words of the court, “withdrawing Bailey’s right to avail herself of the human resources process” — may constitute an adverse employment action in support of a retaliation claim.

The Harassment Claim

Focusing on the first issue — whether the single use of the N-word can constitute unlawful racial harassment — the California Supreme Court highlighted that such claims are evaluated in light of the “totality of the circumstances,” and whether something is severe or pervasive is viewed through the lens of a reasonable person from the group the conduct targeted. In other words, would a reasonable African American in Bailey’s position find the single use of the N-word by a coworker to be severe enough to create a hostile work environment?

The city argued that in the context of work environment where a single use of the N-word over a

14-year period, although extremely offensive, cannot reasonably be considered severe under the FEHA. The city further argued that the comment was one “offensive utterance” made in a private conversation between coworkers, not a comment made by a supervisor, which would be more likely to meet the severe standard under the law.

The California Supreme Court disagreed largely because of the fraught history and extreme offensiveness of the epithet. “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,” noted the court, which then said that, far from a “mere offensive utterance,” the slur may be “intrinsically humiliating depending on the totality of the circumstances.”

On the distinction between speech by a supervisor and a non-supervisor, the court noted that the status of the speaker is a significant factor in assessing severity, but it must be considered as part of the totality of the circumstances — not as a defining factor.

“A rigid distinction between supervisors and coworkers fails to take into account the full context of the workplace,” the court stated in its opinion. For example, an employee may interact rarely with a supervisor, but may be required to work intimately with a coworker, as Bailey did in this case, sharing an office with Larkin. The court also pointed out that the distinction between supervisors and coworkers may fail to consider informal workplace relationships, as “not all power appears on an organizational chart.”

Based on the totality of the circumstances, the court found that a reasonable person in Bailey’s position could find the slur so offensive as to materially affect her employment creating a hostile work environment.

Significant to the court’s conclusion is the fact that Bailey’s work environment shared close quarters with Larkin, and Bailey could not escape the environment. Additionally, Larkin had a close relationship with Taylor-Monachino, which could support the view that Larkin acted with a

certain measure of leverage or power over Bailey, which is consistent with Bailey’s fear of reporting the incident to HR. This is further supported by some evidence that:

• Larkin, through her relationship with Taylor-Monachino, interfered with the employment of two other African American women; and
• Larkin’s comment interfered with Bailey’s work performance based on Bailey’s psychiatrist note indicating she was being treated for severe anxiety and depression that developed because of workplace stress.

A secondary issue arose in the racial harassment claim — whether the city is subject to liability for the acts of a nonsupervisory employee. Under the FEHA, an employer may be strictly liable if a supervisor engaged in the harassing conduct. However, for the employer to be liable for harassment if a nonsupervisory employee — like Larkin — engaged in the conduct, the employer needed to have ratified the conduct through intentional or negligent means. Put another way, if the employer knew or should have known of the nonsupervisory employee’s conduct and fails to take immediate and appropriate corrective action, the employer may be liable.

Here, the California Supreme Court found that Taylor-Monachino’s conduct — refusing to file a complaint as required — undermined the HR process and could be seen as the city failing to take immediate and appropriate corrective action, in effect, ratifying Larkin’s racial harassment and also making the city liable. The court noted that Taylor-Monachino was the person charged with receiving harassment complaints, and there is evidence suggesting that complaints made to her wouldn’t be taken seriously and she actively undermined the process from her position of authority. As such, the court remanded the issue of the city’s liability back to the Court of Appeal.

The Retaliation Claim

To sustain a claim for retaliation, the employee must show that they engaged in a protected activity and suffered an “adverse employment action,” and that engaging in the protected activity is causally linked to the adverse action.

On the retaliation issue, the California Supreme Court also disagreed with the lower courts’ characterization of Taylor-Monachino’s conduct and whether it could constitute an adverse employment action. While the phrase “adverse employment action” is not defined in the FEHA, it has been defined by the courts over time as an action that materially affects the terms, conditions or privileges of employment. As such, retaliatory acts are not limited to significant actions such as demotions, suspensions or termination, but may also take the form of a series of “subtle, yet damaging, injuries.”

Bailey argues that she was subject to a pattern of systemic retaliation. Taylor-Monachino abused her managerial authority to sabotage Bailey’s complaint. That, together with her subsequent hostile behavior toward Bailey, amounted to punishment for Bailey for raising the complaint against Larkin.

The California Supreme Court agreed, concluding that Taylor-Monachino’s conduct could rise to the level of an adverse employment action based on the circumstances, and noting that the lower court’s holding doesn’t fully consider the context or the breadth of conduct that can be an adverse action.

Critically, the conduct at issue was undertaken not by a coworker, but by the human resources manager responsible for receiving complaints of harassment and discrimination in the workplace. Far from a minor or trivial action, noted the court, “the withdrawal of an employee’s right to avail themselves of the HR process typically available to other employees materially affects the ‘terms, conditions, or privileges’ of their employment.” Such treatment is “likely to impair the employee’s job performance because it leaves them unprotected from the very harms the FEHA was designed to eliminate.”

Taylor-Monachino’s complaint obstruction was allegedly followed by aggressive and threatening behavior for months, culminating in an incident in which she mouthed to Bailey “you are going to get it.” Altogether, Taylor-Monachino’s conduct could appear to a jury that it was designed to punish Bailey for engaging in protected activity. The court concluded that, “[w]here a supervisor or other person of authority obstructs and threatens to punish a reporting employee if she persists in bringing a complaint to higher level officials, such acts may be considered by a jury to constitute actionable retaliation.”

In light of its opinion, the California Supreme Court has revived both claims and remanded the case for further proceedings based on this decision.

Employer Takeaways

The decision highlights four fundamental and vital aspects of an employer’s harassment, discrimination and retaliation prevention policy and procedures.

• To avoid a dispute over whether conduct rises to severe or pervasive, employers should maintain zero tolerance of any type of conduct motivated by an employee’s protected class under the FEHA. Taking this action will not only ensure the employer is not found to be negligent in its handling of the conduct, but also can allow an employer to prevent future instances of conduct that may rise to the level of severe or pervasive.
• When it comes to receiving and investigating complaints, employers must have clear procedures that are followed without exception. Employers must take complaints seriously, even when it involves only a singular incident. This case doesn’t stand for the proposition that a singular incident is always unlawful harassment, but it does illustrate that a single incident between coworkers may sustain a harassment claim based on the totality of the circumstances.
• Employers must be prepared to take immediate and appropriate corrective action. As noted by the court, Taylor-Monachino’s failure to report the incident as required is relevant evidence for the city’s liability for both Larkin’s harassing conduct and retaliation against Bailey.
• Effective and targeted training on these complex issues is always vital to the success of a harassment, discrimination and retaliation prevention policy. While harassment prevention training is required under state law, employers should ensure they’re not just “checking the box” when it comes to training, but are actually utilizing training that effectively educates employees of all levels on what is harassing conduct and how to prevent it from occurring.