Not every offensive act in the workplace constitutes actionable harassment under Title VII. In order to rise to the level of a hostile and offensive working environment, the conduct must be sufficiently severe and pervasive to alter the conditions of the victim’s employment, and create an abusive working environment. Last week, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) determined that a co-worker’s use of a racially derogative term twice over a two-day period did not rise to this level.
In Boyer-Liberto v. Fontainebleau Corp., the plaintiff was an African-American employee working in the hotel restaurant. She alleged that during a dispute over work issues, a co-worker called her a “porch monkey” on consecutive days. The plaintiff complained about this conduct to human resources, but was terminated shortly thereafter for performance problems. She sued, claiming racial harassment and retaliation under Title VII.
The Fourth Circuit affirmed dismissal of the claim on summary judgment. While noting that the alleged racial slur was offensive and unjustifiable, the court said that as a matter of law, use of this term by a co-worker on two consecutive days could not create a hostile work environment. The alleged conduct was singular and isolated, and the plaintiff made no additional claims of racially-based harassment. The court distinguished this situation from cases where harassment was found based on use of racial slurs after more incidents over a greater period of time.
This decision might have been different if the racial slurs had been made by a supervisor. Courts view such conduct by supervisors as having a more direct impact on the victim’s employment. Even if isolated or occasional use of these terms may not constitute legal harassment, employers should treat such incidents as serious violations of their anti-harassment policies. As noted by the Fourth Circuit, if these early actions are repeated over time, they eventually can rise to the level of actionable harassment.