EMPLOYMENT LAW: SELECT CASES

Written by Kathleen A. Brewer^*

In 2024, the California Supreme Court and the Ninth Circuit resolved critical issues regarding when workplace harassment is severe or pervasive enough to be actionable under the California Fair Employment Act¹ or the federal Civil Rights Act.² This article plumbs the history of the "severe or pervasive" requirement and analyzes three 2024 cases that may signal a change in the way courts evaluate single-incident and social media harassment cases.

SEVERE BUT NOT PERVASIVE: WHEN CAN A SINGLE ACT—OR A SINGLE SLUR—CONSTITUTE UNLAWFUL HARASSMENT?

In Bailey v. San Francisco District Attorney’s Office,³ the California Supreme Court held that "a coworker’s one-time use of a racial slur" can constitute actionable harassment under FEHA.⁴ The African-American plaintiff in Bailey alleged that a coworker, with whom she shared office space, stated, "’You [N-words] is so scary.’"⁵ As the court observed, a single utterance of "an unambiguous racial epithet, such as the N-word," in light of the surrounding circumstances, can be "so severe as to alter the conditions of employment and create a hostile work environment."⁶ This observation is not novel. The Court of Appeal in Bailey recognized as much: "’a single racial epithet can be so offensive it gives rise to a triable issue of actionable harassment.’"⁷ The lower court, however, emphasized "the significant difference between a slur by a co-worker and one by a supervisor."⁸ In the lower court’s view, "[a] ‘supervisor’s use of the term impacts the work environment far more severely that use by co-equals.’"⁹ Affirming summary judgment for the employer, the Court of Appeal held that that "a single, albeit egregious, racial epithet by a co-worker, without more" cannot create a hostile work environment.¹⁰ The Supreme Court disagreed, finding that the status of the speaker, although potentially "a ‘significant factor’ in assessing the severity of harassing conduct," is not dispositive.¹¹