Friday, September 18, 2020
Page 3
Court of Appeal:
Single Racial Slur by Co-Worker Insufficient for FEHA Suit
By a MetNews Staff Writer
A single “highly offensive” racial slur made by a coworker was not enough to create a hostile work environment, the Court of Appeal has held, affirming a summary judgment in favor of an employer, the San Francisco District Attorney’s Office, in an action brought alleging racial discrimination and harassment.
Justice Kathleen M. Banke of First District’s Div. One wrote the unpublished opinion, filed Wednesday.
Plaintiff Twanda Bailey had been working at the prosecutor’s office for 14 years when, she claimed, a coworker directed a racial slur at her in 2015. After the incident was reported to human resources, Bailey claimed she was treated poorly by the HR director, who forced her to continue working with the offending coworker.
Bailey eventually requested and was granted medical leave, after which she filed an action under the Fair Employment and Housing Act (“FEHA”), including claims of retaliation and failure to prevent discrimination. The human resources director, Evette Taylor-Monachino, was terminated in 2017 under a settlement agreement.
In an opinion affirming the summary judgment, Banke determined that while a single highly offensive epithet can be sufficient to raise the issue of an abusive work environment, more evidence is needed to establish a violation under FEHA, which requires harassing behavior to be “sufficiently severe or pervasive to alter the conditions of the victim’s employment.”
The jurist stressed that the slur was alleged to have been uttered by a co-worker, noting that cases have “commented on the significant difference between a slur by a co-worker and one by a supervisor.”
Banke wrote:
“…Bailey did not in the trial court, nor has she on appeal, cited to any case holding that a single, albeit egregious, racial epithet by a co-worker, without more, created a hostile work environment.
“Nor has Bailey made any other factual showing that the conditions of her employment were so altered by the one slur by her coworker as to constitute actionable harassment.”
No reasonable trier of fact, she declared, could find “severe or pervasive racial harassment.”
The case is Bailey v. San Francisco District Attorney’s Office, A153520.
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