Bailey v. San Francisco District Attorney’s Office
by Clare Moran, associate attorney at Matern Law Group, PC
In California, the Fair Employment and Housing Act (“FEHA”) makes it unlawful for an employer to harass an employee on the basis of race. Cal. Gov. Code § 12940, subd. (j)(1). On July 29, 2024, the California Supreme Court ruled that just one incident of race harassment is sufficient to give rise to employer liability.
Racial Harassment in the Workplace
Twonda Bailey, who is Black, began working for the San Francisco District Attorney’s office in 2001 as a records clerk. In 2011, the office promoted her to an investigative assistant position. There, she worked with Saras Larkin, another investigative assistant. The Court’s decision describes Ms. Larkin as Fijan/East Indian. Ms. Bailey and Ms. Larkin sat next to each other in the records room. On January 22, 2015, while working in the records room, Ms. Larkin told Ms. Bailey that she saw a mouse run under Ms. Bailey’s desk. Ms. Bailey was startled, and jumped out of her chair. Ms. Larkin then approached Ms. Bailey and “quietly said, ‘You [N-words] is so scary.”
Ms. Bailey immediately left her office, crying, and told three coworkers what Ms. Larkin had said. However, she did not immediately complain to Human Resources because she was afraid of further workplace harassment and retaliation. Ms. Bailey knew that Ms. Larkin was close friends with Evette Taylor-Monachino, the office’s department personnel manager, and that similar actions against two other Black women led to them being reassigned or leaving the office altogether.
Launching a Harassment Investigation
The next day, on January 23, Ms. Bailey’s supervisor overheard her talking about the incident, and let her know she would report it. The office subsequently launched an investigation into Ms. Bailey’s allegations. When Ms. Larkin was interviewed, she denied using the n-word. Sheila Arcelona, the assistant chief of finance and administration, informed Ms. Larkin that such language was “unacceptable,” and referred her to the city’s “Harassment-Free Workplace Policy.” Ms. Larkin was never disciplined.
The office also declined to separate Ms. Larkin from Ms. Bailey, as Ms. Taylor-Monachino protested that “there was no way to do that without creating the appearance that one or the other had done something wrong.” Following Ms. Bailey’s complaint, Ms. Taylor-Monachino obstructed the filing of a formal written complaint per office policy, told Ms. Bailey that she should not have told coworkers that Ms. Larkin had used the n-word because she could “cause a hostile work environment for Larkin and Larkin’s work could be ‘messed with.’” Ms. Bailey was so distressed that she took leave from March 27 to April 6.
Inaction leads to Retaliation
Ms. Taylor-Monachino “ignored Bailey; laughed at her; stared rudely at her; and jeered at her, including by making a comment that Bailey’s workers’ compensation claim was not ‘real.’” The court noted “it was undisputed that Taylor-Monachino’s conduct was in retaliation for Bailey’s complaint against Larkin.”
Ms. Bailey argued that this one use of the n-word was unlawful harassment under FEHA. The District Attorney’s Office argued that the incident at issue was not sufficiently “severe or pervasive” to give rise to a harassment claim. The California Supreme Court agreed with Ms. Bailey, explaining “harassment claims focus on ‘situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.’” (quoting Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706) The Court also emphasized that “The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position. We acknowledge, as has the Ninth Circuit before us, that ‘[r]acially motivated comments or actions may appear only mildly offensive to one who is not a member of the targeted group,’ but ‘intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group.’ We must therefore consider allegations of a racially hostile workplace ‘from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” (quoting Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462; Onacle v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 78; McGinest v. GTE Service Crop. (9th Cir. 2004) 360 F.3d 1103, 1116.
One incident of race harassment is enough
With this framework in mind, the Court held: “a single racial epithet can be so offensive it gives rise to a triable issue of actionable harassment.” The Court also noted the particularly hurtful and oppressive nature of the n-word: “The N-word carries with it, not just the stab of the present insult, but the stinging barbs of history, which catch and tear at the psyche the way thorns tear at the skin.”