Twanda Bailey worked at the San Francisco District Attorney’s Office since 2001. In 2011, Bailey worked with Saras Larkin in the records room. Bailey is black. Larkin is Fijian/East Indian. On January 22, 2015, Larkin told Bailey that she saw a mouse run under Bailey’s desk. Bailey jumped out of her chair. Larkin then used the most severe racial slur in reference to Bailey.
Bailey told three coworkers what Larkin had said. Bailey was crying and upset. Bailey did not immediately complain to the Department of Human Resources (DHR) because she feared harassment and retaliation. Larkin was best friends with the personnel officer.
Bailey eventually met with a manager and the personnel officer to complain. Larkin did not admit to making the slur. The manager counseled Larkin and warned that the use of the alleged language was “unacceptable.” The manager documented the meetings with Bailey and Larkin and provided a written summary to the personnel officer. The personnel officer was the HR representative charged with reporting incidents of harassment to DHR, but she did not file a complaint as City policy required.
On March 23, Bailey asked the personnel officer for a copy of the complaint regarding the January 22 incident. The personnel officer said no complaint existed. When Bailey requested that a complaint be filed, the personnel officer refused. The personnel officer stated that Bailey should not have told her coworkers about the incident with Larkin, adding that, by doing so, Bailey could cause a hostile work environment for Larkin.
After the March 23 meeting, Bailey noticed a shift in the personnel officer’s behavior toward her, including mocking Bailey’s workers’ compensation claim. Bailey testified that this conduct was ongoing and occurred daily, although she did not believe it was racially motivated. In April, DHR received a report regarding Bailey’s allegations against Larkin, and in May, Bailey formally reported that Larkin harassed her based on race. She also claimed that the personnel officer retaliated against her after their March 23 meeting.
Bailey’s performance review in July rated her as “Met Expectations,” similar to previous years. The review noted areas for improvement in attendance and responsiveness to supervisors. Bailey disagreed with this assessment, stating that her absences and challenges stemmed from the stress caused by her interactions with Larkin and fear of being accused of creating a hostile work environment. In July, DHR informed Bailey that her complaints did not meet the threshold for harassment or retaliation, and the department would not investigate further. The personnel officer received a memorandum that admonished her to accept, document and report all EEO complaints to the DHR within five days.
In August, Bailey reported a new incident involving the personnel officer outside the office. Bailey felt increasingly intimidated by the personnel officer’s behavior. Bailey’s psychiatrist confirmed treatment for severe anxiety and depression due to workplace stress. DHR investigated Bailey’s allegations against the personnel officer but found the evidence inconclusive, though the personnel officer was disciplined for a separate incident.
In December, Bailey filed a FEHA lawsuit against the City for racial discrimination, harassment, and retaliation. The court granted the City’s motion for summary judgment. In an unpublished opinion, the Court of Appeal affirmed the trial court’s grant of summary judgment. The California Supreme Court granted Bailey’s request for review.
The Court overturned the grant of the City’s summary judgment motion, and allowed Bailey to proceed with her claims. The Court addressed two issues: 1) whether a coworker’s single use of a racial slur can be severe enough to support a harassment claim; and 2) whether an employer’s course of conduct that prevents an employee from reporting harassment is an adverse action that can support a retaliation claim.
First, as to Bailey’s harassment claim, the City argued that a coworker’s single use of a racial slur did not meet the standard of severe or pervasive harassment. Bailey disagreed, arguing that courts have found that even a single use of a racial slur can support a harassment claim. The Court held that that an isolated act of harassment may be actionable if it is sufficiently severe in light of the totality of the circumstances.
Moreover, the Court held that the fact that a coworker used the slur, and not a supervisor, could be sufficient to support a harassment claim. The Court said that a coworker’s influence or the nature of workplace relationships can still create an abusive environment, even without direct managerial authority.
The Supreme Court also considered whether the City could be held liable for the harassment Bailey experienced. If a supervisor is involved in the harassment, the employer is strictly liable. However, if the harasser is a nonsupervisory employee, the employer’s liability hinges on whether it took immediate and appropriate corrective action upon knowing about the harassment. The Court remanded the case to reassess the City’s liability, taking into account the potential undermining effect of the personnel officer’s actions on the City’s remedial efforts.
Second, as to Bailey’s retaliation claim, the City had argued that no adverse action had occurred as a result of the personnel officer’s conduct or the 2015 evaluation. The Court found that a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment may be an adverse action that can support a claim of retaliation. The Supreme Court remanded the case for further evaluation.
Twanda Bailey v. San Francisco District Attorney’s Office, et al., 16 Cal.5th 611 (2024).