The recent California Supreme Court case of Twanda Bailey v. San Francisco District Attorney’s Office highlights the importance of employers taking proactive measures to prevent and address harassment, discrimination, and retaliation in the workplace.  

The questions before the Court were: 

1. Whether a coworker’s one-time use of a racial slur may be actionable in a claim of harassment (i.e., so severe as to alter the conditions of employment and create a hostile work environment); and  
2. Whether a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace is actionable in a claim of retaliation. 

Bailey, an African American employee of the San Francisco District Attorney’s Office, alleged that a coworker with whom she shared an office and job duties called her the N-word.  Bailey further alleged that, after she reported the incident, the human resources manager for the District Attorney’s Office obstructed the filing of a formal complaint, engaged in a course of intimidating conduct, and ultimately threatened Bailey that she was “going to get it.” 

Ultimately, the Court found that even an isolated act of harassment may be actionable if it is sufficiently severe considering the totality of the circumstances, and that a coworker’s use of an unambiguous racial epithet, such as the N-word, meets this standard.  The Court also found an actionable claim for retaliation where a course of conduct effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace. 

To help mitigate risks associated with allegations of harassment, discrimination and/or retaliation consider these best practices:  

1. Develop and Enforce Clear Policies: California law requires employers to establish comprehensive anti-harassment, discrimination, and retaliation policies. These policies must be clearly written, easily accessible, and communicated to all employees. Regular updates and reviews of these policies ensure they remain relevant and effective. 
2. Conduct Regular Training: California law also requires that employers with five or more employees provide anti-harassment training to all employees every two years. Mandatory training sessions on harassment, discrimination, and retaliation should include recognizing, preventing, and reporting inappropriate behavior.  
3. Create a Reporting Mechanism: Implement a confidential and straightforward reporting system for employees to report incidents of harassment, discrimination, or retaliation. Ensure that employees know how to use this system and feel safe doing so without fear of retaliation. 
4. Prompt and Thorough Investigations: When a complaint is filed, a prompt, thorough, and impartial investigation is required. Be sure that the investigation is accurately documented and includes all investigation efforts and outcomes.  
5. Take Appropriate Action: Based on the findings of the investigation, take appropriate corrective action. This may include disciplinary measures, changes in workplace policies/procedures, or additional training sessions. 
6. Monitor and Review: Continuously monitor the effectiveness of policies and procedures. Regularly review and update them to reflect changes in the law and best practices. Engage with legal counsel to ensure compliance with FEHA and other relevant regulations.