Labor & Employment Law Blog

This simmering issue has now been elevated to burning status in light of the California Supreme Court’s December 30, 2020 grant of review of Bailey v. San Francisco District Attorney’s Office (SC S265223/A153520).  In Bailey, the appellate court affirmed the trial court ruling that there was no triable issue of material fact as to Bailey’s racial discrimination, harassment, and retaliation causes of action.  Surprisingly, the initial appellate decision affirming the grant of summary judgment did not rely on the Carter doctrine, but the modified opinion did. 

The question upon which review of this unpublished opinion was granted was:  “Did the Court of Appeal properly affirm summary judgment in favor of defendants on plaintiff’s claims of hostile work environment based on race, retaliation, and failure to prevent discrimination, harassment, and retaliation?”   This broad topic includes the failure to prevent cause of action as well as whether a “single, albeit egregious, racial epithet by a co-worker, without more, created a hostile work environment,” and whether the plaintiff made a factual showing that “the conditions of her employment were so altered by the one slur by her co-worker as to constitute actionable harassment.” 

Plan of Action

If the Court rules that a failure to prevent cause of action can proceed even if discrimination, harassment, or retaliation have not been proven, an employer’s efforts to stop illegal conduct will become even more important.  Not only should a zero tolerance policy be adopted, but the policy must also be implemented in a meaningful way by ensuring that employees and supervisors are well-trained, effective oversight occurs, the complaint process fulfills its mission, retaliation is prevented, and remedial corrective action is taken.

Regardless of how the Bailey decision turns out (a ruling is not expected until 2022), the importance of harassment prevention policies should not be underestimated.  Employers are advised to review, revise, and republish harassment prevention policies and retrain supervisors and employees on those policies.