It has been held in California that to constitute hostile work environment at workplace based on racial or other kinds of harassment, the harassing conduct must be “sufficiently severe and pervasive.” This means that generally, a single discriminatory comment or isolated incidents of slur by a co-worker cannot be actionable as harassment or discrimination as a matter of law. However, the courts recognize the fundamental difference between the impact that a co-worker’s actions or words have an a potential victim of harassment and discrimination and the words/actions of a manager or any other person in a position of power over an employee.
The leading case on this issue is Dee v. Vintage Petroleum, Inc. (2003). In that case, the court pointed out that while one racial comment is insufficient as a matter of law to establish a claim for hostile work environment, there is neither a threshold “magic number” of harassing incidents that gives rise to employer’s liability… nor a number of incidents below which a claimant fails as a matter of law to state a claim. The court noted however that where the act committed by a supervisor, the result may be different. Because the employer cloaks the supervisor with authority, the supervisor’s conduct is normally attributed directly to the employer.
The effect of the offensive and unlawful conduct of a person who acts on behalf of the company and who is in a position of superiority has a much more dramatic and adverse impact on an employee creating a far more abusive workplace environment that would otherwise have been created by co-worker. The court further recognized that even an isolated incident of racial slur may not actually be “isolated” because it explains the manager’s motivation for creating abusive work environment