FOURTH CIRCUIT ADOPTS EMPLOYEE-FRIENDLY HOSTILE WORK ENVIRONMENT AND RETALIATION STANDARDS
Traditionally, the United States Court of Appeals for the Fourth Circuit Court – which encompasses the West Virginia – has been regarded as being an employer-friendly jurisdiction when it comes to deciding cases arising under federal employment laws. However, that gradually has been changing over the last handful of years, and there’s no greater example of that trend than the recent case of Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015), when the Fourth Circuit ruled that a single, isolated instance of harassment may give rise to an actionable hostile work environment claim under Title VII. Because the opinion lowered the standard for when employers may be liable for sexual harassment, it’s very important for employers to be familiar with it.
The plaintiff in the case, Reya Boyer-Liberto, an African-American, worked at Ocean City, Maryland’s Clarion Resort Fontainebleau Hotel as a cocktail waitress. Ms. Liberto sued Clarion and its owner alleging racially hostile work environment and retaliation claims under Title VII of the Civil Rights Act of 1964. She alleged that within a 24-hour period, the hotel’s Caucasian supervisor/hostess twice referred to her as a “porch monkey,” and that after she complained to management and human resources about the hostess’ conduct, she was fired.
The United States District Court for the District of Maryland – where the case was originally filed – dismissed the Plaintiff’s claims, concluding that Boyer-Liberto was unable to show that she was subjected to severe or pervasive conduct sufficient to give rise to a hostile work environment, and also unable to show she had a reasonable belief that she had been unlawfully harassed, such as would protected her from retaliation. On appeal initially, a three-judge panel of Fourth Circuit agreed. At the time, the Fourth Circuit noted that while the term “porch monkey” is racially derogatory and utterly distasteful, the racial slurs did not amount to the required “severe or pervasive” standard. However, the Plaintiff asked for the entire Fourth Circuit Court to re-hear the case, and they agreed to do so. Thereafter, the full bench of the Fourth Circuit ruled in favor of Boyer-Liberto – and by a 12-3 vote, no less.
Regarding Boyer-Liberto’s hostile work environment claim, the Fourth Circuit Court held that while viable hostile work environment claims typically involve a course of repeated conduct, an isolated incident of harassment can give rise to a hostile work environment claim if the incident is extremely serious. The Court concluded that a reasonable jury could find that the hostesses’ two uses of the “porch monkey” epithet toward Boyer-Liberto – though perhaps isolated – was sufficiently severe and serous enough to engender a hostile work environment. Significantly, in reaching this conclusion, the Court overturned its prior holding in the 2006 case of Jordan v. Alternative Resources Corp., which held that a singular and isolated offensive comment which did not alter the terms and conditions of an employee’s employment cannot support a hostile work environment claim.
Regarding Boyer-Liberto’s retaliation claim, the Court held that employees are protected from retaliation when the employee “reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone.”
In his dissenting opinion, Judge Paul Niemeyer outlined his concerns regarding the majority’s decision, saying that the Court’s ruling will “generate widespread litigation over the many offensive workplace comments made every day that employees find to be humiliating.”
While it remains to be seen whether, in fact, the Court’s decision results in increased employment litigation, there is no doubt that the ruling makes it easier for plaintiffs to advance claims for hostile work environment and retaliation. Employers are wise to continue to take complaints of workplace harassment very seriously, investigate complaints promptly and thoroughly – even those that involve a single instance of conduct – and take prompt and effective corrective action under your anti-harassment policy when warranted.
* Summer Associate Anna Kimberling of the West Virginia University College of Law contributed to the research and composition of this blog post.