Decision: A recent en banc decision of the US Court of Appeals for the Fourth Circuit held that “an isolated incident of harassment, if extremely serious, can create a hostile work environment,” partially overruling a 2006 Fourth Circuit decision. In Boyer-Liberto v. Fontainbleau Corp., the plaintiff alleged that the defendant maintained a racially hostile work environment and that she was retaliated against in violation of Title VII of the Civil Rights Act of 1964 after she reported to the company’s human resources department that a white supervisor had twice in one day called her a “porch monkey.” The employer defended against the claims by arguing that the isolated incidents were not severe and pervasive, and that the plaintiff could not have reasonably believed that they were. In rejecting this argument, the appellate court held that a reasonable jury could conclude that a hostile work environment existed because the racial epithet that was used “is not just humiliating, but degrading and humiliating in the extreme.” The court further explained that when considering a claim of hostile environment based on an isolated incident, the court’s focus should be on the severity of the harassment.

Impact: This decision highlights the importance of considering the entire context and content of any alleged discriminatory harassment before dismissing it as isolated behavior. The mere fact that the alleged discriminatory harassment occurred only once (or a few times) will not necessarily entitle the employer to a judgment that a hostile environment does not exist or that the employee did not engage in protected activity when complaining about it. When confronted with such circumstances, employers should consult counsel for advice regarding how to proceed with investigating and resolving such complaints.