California Top Court Likely To Revive Suit Over Slur Use at Work

California Supreme Court justices appear poised to revive a suit brought by a San Francisco District Attorney’s Office employee, who alleged her co-worker called her an anti-Black slur and contributed to a hostile work environment.

The justices were receptive to arguments from Twanda Bailey’s attorneys that a lower court misjudged the impact of being called a “scary [n-word],” as described in court documents, on her experience at work and ignored the circumstances surrounding the slur. Bailey alleges the office shut down an investigation into the harassment and that the HR manager, Evette Taylor-Monachino, didn’t separate Bailey from the co-worker, Saras Larkin, for ten months after the incident.

In a state known for its robust worker protections, the case will impact the standard for workplace harassment claims.

Justice Kelli M. Evans pushed back on Deputy City Attorney Tara Steeley’s arguments that Larkin’s one-time use of the slur wasn’t extreme or pervasive enough to warrant a toxic workplace claim. It should be up to a fact-finder to wrestle with the degree to which it impacted Bailey, Evans said.

Steeley’s remarks that Bailey and Larkins were friends without any prior animosity may not help the office’s case, Evans said.

“Those facts you just described might make it all the more severe,” Evans said. “Someone that you trust and have a close relationship with, out of the blue just uses this deeply offensive term? That may affect an employee more deeply than a stranger, or a co-worker they have no working relationship with.”

Bailey feared retaliation for reporting the harassment because Larkin had used her friendship with the HR manager, Evette Taylor-Monachino, to make false allegations against Black women in the office who were then fired, Baileys attorneys said in court filings.

“As we say in the business, these are pretty bad facts for you,” Justice Carol A. Corrigan told Steeley.

A California appeals court affirmed the trial court’s grant of summary judgment for the DA’s office, saying that one use of a racial slur by Bailey’s co-worker can’t create a hostile work environment. The court also ruled that the office couldn’t be held liable because the co-worker received counseling that the slur wasn’t appropriate and it didn’t happen again.

A coalition of amici representing low-income workers of color, led by Legal Aid at Work, argued in court filings that because the slur was used to subject Black people to slavery, its use at work now “can instantly imbue” a workplace with elements of racial subjugation.

“It must therefore only be under the very rarest of circumstances that the effects of its utterance can be found insignificant as a matter of law,” the amici wrote.

Daniel Ray Bacon and Robert L. Rusky, San Francisco-based attorneys, represent Bailey.

The case is Bailey v. San Francisco District Attorney’s Office, Cal., No. S265223, 5/22/24.