There is an old adage that “one robin does not make it spring.” The same adage could apply to a plaintiff’s burden to establish harassment: one insult normally does not establish an illegal hostile working environment.
Except that sometimes it does, at least according to a recent holding of the Fourth Circuit, which recently held that one racial slur was enough to create a hostile working environment where the slur was made by an employee’s supervisor or even one having apparent supervisory authority. Boyer-Liberto v. Fontainebleau Corp. (May 7, 2015)(en banc).
The Fourth Circuit’s holding should not be surprising since the Supreme Court, in the case of Faragher v. City of Boca Raton, indicated that a series of incidents or an “isolated incident” of harassment, if extremely serious, could create a hostile work environment. However, the Fourth Circuit’s reasoning in the Boyer-Liberto case was somewhat unusual because in virtually all of the other jurisdictions, including the Fourth Circuit itself, it typically takes more than a single act of hostility to establish unlawful harassment.
Before summarizing the Boyer-Liberto case it might be well to review the major points of law under Title VII pertaining to a hostile working environment:
- A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
- This determination is made by looking at all the circumstances including 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.
- Generally, whether a work environment is objectively hostile or abusive is judged from the perspective of a reasonable person in the plaintiff’s position.
- In terms of frequency, the mere utterance of an epithet which engenders offensive feelings, generally, does not sufficiently affect the conditions of employment to make the working environment “hostile.” The same goes for simple teasing and offhand jokes or comments.
- In measuring the severity of harassing conduct, the status of the harasser may be a significant factor. A supervisor’s power and authority makes his or her use of a racial epithet, for example, far more serious with respect to the work environment than a co- worker’s.
- The employer is strictly liable for the supervisor’s harassing behavior if it culminates in a tangible employment action, but the employer may escape liability if the employer can show that: (1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
- For purposes of an employer’s vicarious liability, a harasser qualifies as a supervisor rather than a co- worker if her or she is empowered to take tangible employment actions against the victim, or empowered to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits. The employee need not have the final say as to the tangible employment action, instead, the employee’s decision may be subject to approval by higher management. (As recently clarified in the Supreme Court’s decision in the case of Vance v. Ball State Univ.)
Keeping the foregoing basic principles in mind, the case of Boyer-Liberto v. Fontainebleau Corporation, et al. can be summarized as follows:
- Reya Boyer-Liberto, an African-American female worked as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland. Boyer- Liberto alleged that a Caucasian, “restaurant manager,” Trudi Clubb, called her a “Porch Monkey” twice in the work area within a period of 24 hours, once on September 14 and another time on September 15, 2010, because Boyer-Liberto had accommodated a customer by serving a drink to him that required special handling. Clubb claimed that she had been calling Boyer-Liberto while she was attempting to serve the customer and Boyer-Liberto ignored her calls. Clubb also threatened to fire Boyer- Liberto because of the incident. It is not clear from the facts in the case whether Trudi Clubb was a “Manager” with supervisory authority or merely a “Glorified Hostess.” However, it seemed undisputed that she “had the owner’s ear” with respect to personnel decisions pertaining to the restaurant and bar areas of the hotel. Soon after reporting Clubb’s racial epithets to an actual Food and Beverage Manager, Boyer-Liberto was fired by the owner of the hotel, Dr. Leonard Berger.
- In the action that ensued against the Fontainebleau Corporation and Berger, Boyer-Liberto alleged claims of a racially hostile working environment and retaliation under both Title VII and 42 U.S.C. §1981. The District Court awarded summary judgment to the defendants, and a split three-judge panel (2 to 1) of the Fourth Circuit affirmed. However, when the entire Fourth Circuit heard the matter, it found that Boyer- Liberto’s claims for harassment and reatliation should not be dismissed, but heard by a jury.
- In vacating the trial court’s summary judgment in favor of the Defendants and remanding for further proceedings on Boyer-Liberto’s claims, the Fourth Circuit stated that “we underscore the Supreme Court’s pronouncement in Faragher v. City of Boca Ratonthat an isolated incident of harassment, if extremely serious, can create a hostile work environment. We also recognize that an employee is protected from retaliation when she 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.” The court also overruled a previous case that had been construed to “require more than a single incident of harassment” in virtually every hostile work environment case.
- The Fourth Circuit suggested in its remand that the issue of whether the two references to the Plaintiff as a “Porch Monkey,” although taken as one isolated incident, was severe enough to warrant a jury determination as to whether it constituted a hostile work environment under all of the circumstances.
- As to the also-revived retaliation claim, the Court held, “an employee is protected from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress.”
Thus in answer to the question of whether one isolated remark or one incident could be enough upon which to base a hostile environment claim, the answer in the Fourth Circuit would surely be “Yes” if the incident it was physically threatening or humiliating. The Fourth Circuit did not define how threatening or humiliating the remark or incident would have to be. According to the Court, that would depend on the facts in the case and that should be left up to a jury.
Additionally, the Court speculated that in a case such as the one in question, it would be possible for a jury to find that no hostile environment had been created by the isolated incident in question, but that the Plaintiff had been retaliated against in violation of Title VII if the Plaintiff reasonably believed that the underlying incident was unlawful.
This case is not over. If the case does not settle, a jury will decide whether the Plaintiff in this case was subjected to a “hostile work environment” based upon the isolated but apparently “serious” racial epithets directed at her. A determination of the issue of retaliation is also pending. We will follow the case and report the Trial Court’s findings in this column when they are finalized. In the meantime employers should be aware of the rather unique holdings by the Fourth Circuit as to a hostile work environment.