Employer Liability for Hostile Work Environment Claim in California
In Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, the appellate court concluded that "in many cases, a single offensive act by a coemployee is not enough to establish employer liability for a hostile work environment. But where that act is committed by a supervisor, the result may be different." (Dee, supra, 106 Cal.App.4th at p. 36.)
Dee noted that in Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917 at page 927, footnote 9, the federal appellate court reasoned that "'a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim.'" (Dee, supra, at p. 36.)
Dee further stated that in other jurisdictions, "a single racial slur by a supervisor may also create a hostile work environment" (Dee, supra, 106 Cal.App.4th at p. 36), citing to Rodgers v. Western-Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 675.
In Rodgers, the Seventh Circuit concluded that the supervisor's use of an unambiguous racial epithet in the presence of his subordinates "impacts the work environment far more severely than use by co-equals." (Rodgers, supra, at p. 675.)
The Rodgers court reasoned that "perhaps no single act can more quickly 'alter the conditions of employment and create an abusive working environment'" than the use of a racial slur by a supervisor in the presence of his subordinates. (Ibid.)
However, Rodgers differs from Dee and the present case in several respects. Procedurally, Rodgers did not arise from the grant of summary judgment; the appeal arose following a bench trial where the district court found the existence of a hostile work environment. (Id. at p. 670.)
Factually, the supervisor in Rodgers engaged in several isolated incidents that contributed to the finding by the trial court that there was a hostile work environment. (Id. at pp. 675-676.)
The supervisor in Rodgers used the word "'nigger'" twice in the presence of the plaintiff, made a statement that "'you black guys are too fucking dumb to be insurance agents'" (Rodgers, supra, 12 F.3d at p. 675), told the plaintiff that he was advised not to hire more African American agents, remarked to the plaintiff that he "'must think he's back in Arkansas chasing jack rabbits,'" and used the nickname "'Rabbit'" for the plaintiff. (Id. at p. 676.)
More accurately, Rodgers concluded that "in examining the 'totality of circumstances' giving rise to the plaintiff's actions, the district court properly considered the cumulative weight of the supervisor's several 'isolated' racial comments." (Id. at p. 675.)
Dee itself did not hold that a supervisor's single isolated racial slur is sufficient to create a triable issue regarding the existence of a hostile work environment.
The Dee court concluded that a supervisor's single racial slur when coupled with other evidence, such as where the supervisor had also instructed the employee to lie, used foul language against her, and berated her in the workplace, created a triable issue. (Dee, supra, 106 Cal.App.4th at pp. 36-37.)