Bailey v. San Francisco Dist. Attorney’s Office, 16 Cal. 5^th 611 (2024)

Twanda Bailey, an African-American clerk in the San Francisco District Attorney’s Office, sued her former employer for racial discrimination and harassment, retaliation, and failure to prevent discrimination in violation of California’s Fair Employment and Housing Act.  The claims stem from a single incident in which one of Bailey’s co-workers with whom she shared an office called her the “N-word.”  The trial court granted, and the Court of Appeal affirmed summary judgment for the employer, concluding that no trier of fact could find severe or pervasive racial harassment based on being “called a ‘[N-word]’ by a co-worker [rather than a supervisor] on one occasion.”

However, in this opinion, the California Supreme Court reversed, holding that the trial and appellate courts placed undue emphasis on the speaker’s status as a co-worker, rather than a supervisor.  “This case involves an unambiguous racial epithet …  [t]he word was used only once; it was not overheard but directed specifically at Bailey.  Although it was not physically threatening, a jury could find that use of the slur was ‘degrading and humiliating in the extreme.’”  The Court further noted that Bailey and her co-worker shared an office space, shared work duties and were asked to cover each other’s desks, which meant that Bailey could not distance herself — physically or otherwise — from her co-worker.  Further, the record could support a finding the racial slur interfered with Bailey’s work performance, as Bailey’s psychiatrist provided a letter indicating she was being treated for severe anxiety and depression that developed as a result of workplace stress.  Finally, the Court concluded that the HR Manager’s “purposeful obstruction” of Bailey’s complaint about her co-worker “could be understood as quintessentially retaliatory.”