In a rare en banc employment law decision, the Fourth Circuit, ruling 12-3 in Boyer-Liberto v. Fontainebleau, overruled prior precedent and held that an isolated incident of harassment, if extremely serious, can create a hostile work environment and that an employee reporting a single incident of harassment can have a reasonable belief that a hostile work environment is “in progress” sufficient to support a claim of retaliation. The decision explicitly overrules the Fourth Circuit’s decision in Jordon v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), which held the converse. In that case, the district court granted a Rule 12(b)(6) motion to dismiss where the plaintiff complained about a co-worker’s reference to third parties as “two black monkeys.” In a twist of fate, Judge King, who wrote the dissent in Jordon, authored the en banc decision.

The matter arose from plaintiff Reya C. Boyer-Liberto’s allegations that after just seven weeks of working in assorted positions within the food and beverage department at the Clarion Resort Fontainebleau Hotel in Ocean City, Md., manager Trudi Clubb, within a 24 hour period, twice called her a “porch monkey” during a verbal dispute between the two. The following day Liberto complained about the alleged harassment to the hotel’s human resources director who informed the hotel owner, Leonard Berger, and hotel general manager about the complaint. Berger then contacted the facility’s food and beverage director, who gave a negative evaluation of Liberto’s performance. Five days after her complaint to human resources, Berger fired Liberto and issued a written reprimand to Clubb, who denied making the “porch monkey” comments. Significantly, the majority deemed Clubb to be Liberto’s supervisor.

Liberto filed suit in the District of Maryland claiming hostile work environment and retaliation under Title VII and Section 1981. Relying on the holding in Jordan, the district court awarded summary judgment to the defendants, adopting their contentions that Clubb’s conduct was not so severe or pervasive as to create a hostile work environment or to instill a reasonable belief in Liberto, such as would protect her from retaliation, that she had been unlawfully harassed. On appeal, a three-judge panel for the Fourth Circuit unanimously upheld summary judgment on Liberto’s hostile work environment claims, and in a split decision upheld summary judgment with respect to Liberto’s retaliation claims. The Fourth Court then granted Liberto’s petition for rehearing en banc.

ISOLATED INCIDENT OF HARASSMENT SUFFICIENT

The majority opinion first discussed whether an isolated incident of harassment, if extremely serious, could create a hostile work environment to withstand summary judgment.

To prevail on a Title VII claim that a workplace is racially hostile, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff’s . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.”

Element three requires that the environment “would reasonably be perceived, and is perceived, as hostile or abusive.” Judge King wrote that the determination is made “by looking at all the circumstances,” which “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Judge King noted that “‘mere utterance of an . . . epithet which engenders offensive feelings in an employee’ does not sufficiently affect the conditions of employment to implicate Title VII. . . . The same goes for ‘simple teasing [and] offhand comments.’” citing Faragher v. City of Boca Raton. Importantly, however, an “isolated incident” of harassment can “amount to discriminatory changes in the terms and conditions of employment,” if that incident is “extremely serious.”

The majority noted that the “chosen slur ‘porch monkey’—is about as odious as the use of the [“n” word]” The slur, the court wrote, “goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.” Therefore, the majority found, a reasonable jury could find the two uses of the “porch monkey” epithet, “whether viewed as a single incident or a pair of discrete instances of harassment,” were “severe enough” to create a hostile work environment.

In vacating the summary judgment award, the court identified this situation as the type of case contemplated by the Supreme Court in Faragher, which although isolated can still properly be deemed to be “extremely serious.” While acknowledging that the decision was a first for the Fourth Circuit, the majority rejected, “any notion that our prior decisions, includingJordan v. Alternative Resources Corp., were meant to require more than a single incident of harassment in every viable hostile work environment case.” Specifically, the court found that the district court improperly analogized Jordan (concerning a racist remark that was made by a mere co-worker and not aimed at Jordan or any other employee) to this case (involving a racial epithet directed at the plaintiff by her supervisor).

ISOLATED INCIDENT CAN CREATE REASONABLE BELIEF OF HOSTILE WORK ENVIRONMENT

The majority opinion then turned to plaintiff’s retaliation claim, considering whether an individual reporting an isolated incident can have a reasonable belief that a hostile work environment exists.

In the retaliation claim context, an employee is protected when she opposes not only unlawful employment actions under Title VII, “but also employment actions reasonably believe[d] to be unlawful.” Further, the court noted that an employee is protected from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress.

Judge King turned first to rejecting and overruling the reasoning of Jordan, which found that an employee, complaining about an “isolated incident” of harassment, was unprotected from retaliation because she could not have reasonably believed she was complaining about conduct that violates Title VII. Citing his own dissent in Jordan, Judge King wrote that the “intent to create a hostile work environment” is not an element of a hostile environment claim. Further, the majority found that the Jordan reasoning creates perverse incentives for employees not to report offensive behavior before it becomes full-blown harassment, contrary to the preference for early reporting and swift employer action to remedy incipient harassment spelled out in Faragher and subsequent Supreme Court cases. Instead, the majority reasoned that when assessing the reasonableness of an employee’s belief that she is opposing conduct prohibited by Title VII, the focus should be on the severity of the alleged harassment. The court wrote:

In sum, under the standard that we adopt today with guidance from the Supreme Court, an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur. The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating.

Here, the court determined that a jury could find the plaintiff reasonably believed that there was a hostile work environment “in progress” when she reported the use of the “porch monkey” slur. Further, the court noted that on remand, a jury could reject the plaintiff’s racial harassment claim, but still find for her on retaliation, given that based on a supervisor’s use of racial epithets directed at her, she reasonably believed a hostile work environment was in progress.

DISSENTING JUDGES CALL HOLDING GRATUITOUS AND UNTENABLE

In dissent, Judge Paul Niemeyer, who wrote the majority decision in Jordon, found that the alleged use of the term “porch monkey” twice in less than 24 hours when talking about a single incident was, as a matter of law, not so severe or pervasive as to produce a racially hostile work environment that changed the terms and conditions of the plaintiff’s employment. Judge Niemeyer concluded that the majority’s opinion turned the Fourth Circuit into an “outlier,” writing that the “gratuitous and untenable holding will generate widespread litigation over the many offensive workplace comments made everyday that employees find to be humiliating.” 

In another partial dissent, Judge J. Harvie Wilkinson, joined by Judge G. Steven Agee, said that if courts lessen their insistence on an objectively reasonable belief in a hostile environment and permit the reporting of all manner of perceived slights to warrant Title VII protection, they become party to the creation of the workplace as a zone where First Amendment values have ceased to be observed. Judge Wilkinson found that the majority was correct in allowing plaintiff’s retaliation claim to proceed, but wrong in not affirming the district court on the merits of the Title VII claim. Judge Wilkinson warned that reviving the decision could turn employers into “speech police.”