Co-Worker's Sole Racial Epithet Didn't Create Hostile Workplace

Because a co-worker's single use of a racial epithet did not create a hostile workplace, an employee's racial-harassment lawsuit could not continue to trial, a California appellate court ruled.

The court, however, stressed that the use of a single racial epithet, particularly by a supervisor, could support a hostile work environment claim if it altered the conditions of the worker's employment.

The employee, who worked as an investigative assistant at the San Francisco district attorney's office, claimed that a co-worker used the "n-word" to refer to her on one occasion. She subsequently sued her employer, alleging racial harassment, among other claims. The trial court dismissed the claim before trial, and the employee appealed.

Racial Harassment Under FEHA

The California Fair Employment and Housing Act (FEHA) prohibits harassment on the basis of race. The law is violated, the court said, when the workplace is permeated with discriminatory "intimidation, ridicule and insult" that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. The law is evaluated based on the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.

To prevail on a harassment or hostile work environment claim, the plaintiff must establish that the harassment was severe or pervasive. The distinction between severity and pervasiveness means that the two are alternative possibilities. Some harassment may be severe enough to contaminate an environment even if it is not pervasive; other less-objectionable conduct will contaminate the workplace only if it is pervasive, the court said.

With respect to whether harassment has altered the conditions of employment, the plaintiff need not prove that his or her productivity declined as a result of the harassment. It is enough to prove that a reasonable person subjected to the discriminatory conduct would find that the harassment so altered working conditions as to make doing the job more difficult, the court said.

Although the co-worker's comment was highly offensive, it did not alter the employee's working conditions, the court said.

The court noted that a single racial epithet can be so offensive it gives rise to a triable issue of harassment, but that was not the case here.

The use of racial epithets by supervisors is commonly considered more serious because supervisors are inherently vested with the employer's authority. Therefore, in measuring the severity of harassing conduct, the status of the harasser may be a significant factor, the court explained.

A supervisor's use of a racial epithet impacts the work environment far more severely than use by a co-worker because the supervisor's authority gives his or her harassing conduct a threatening character.

The employee could not point to a case when a single egregious racial epithet spoken by a co-worker created a hostile work environment.

Therefore, the appellate court agreed with the trial court that the co-worker's single statement did not amount to severe or pervasive racial harassment. It affirmed the trial court's decision dismissing the racial-harassment claim before trial.

Bailey v. San Francisco District Attorney's Office, Calif. Ct. App., No. A153520 (Sept. 16, 2020).

Professional Pointer: The court points out that to succeed on a hostile work environment claim, the employee must show that the harassment was severe or pervasive; it does not require that the employee show the objectionable conduct was both severe and pervasive. This means that one act or comment, if serious enough to alter the conditions of the worker's employment, may be enough to establish a hostile environment.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.