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Employment Law Update: Single Slur Requires Jury Trial On Hostile Work Environment Claim against Employer in California

Date: July 31, 2024
On July 29, 2024, the California Supreme Court issued a unanimous opinion in Bailey v. San Francisco Dist. Attorney Office, Cal., No. S265223, and held that the employee’s claims of racial harassment should proceed to jury trial and the trial court's summary judgment decision for the employer was in error.

The case arises out of a complaint by a California employee alleging a co-worker directed a single racial slur at her. The California Supreme Court held that the standard for evaluating workplace harassment “should be judged from the perspective of a reasonable person in the plaintiff’s position” and “the one-time use of a racial slur” can give rise to actionable harassment. Moreover, in overruling the lower court's decisions, the California Supreme Court also held that the status of the individual uttering the slur (i.e. a supervisor) may be a “significant factor,” but must also be considered “as part of the totality of the circumstances.”

In sum, a single racial slur made by a co-worker can rise to the level of a hostile work environment under California law that results in employer liability. Remember that in most cases, an employer is automatically liable for a supervisor’s actions (i.e. the employer cannot present any defense) and will be liable for nonsupervisory employees when the employer is found negligent. While the merits of this case have not been tried, the decision makes clear that single-use slurs by co-workers can create a triable issue and impart liability on employers for their failure to take corrective action.

For employers in Maryland, Virginia, West Virginia, North Carolina and South Carolina, the Fourth Circuit (which governs employers in these states), has also held that a single or discrete incident may be sufficient to establish a hostile work environment. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015).

Employers must remain mindful of potential hostile work environments and diligent in enacting and properly enforcing policies against workplace harassment; engaging in appropriate workplace training for managers and employees; ensuring that an easy to use and accessible complaint process is in place; and promptly and thoroughly investigate any harassment, discrimination or retaliation  complaint.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.