Last month, in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (4th Cir. May 7, 2015), the federal Court of Appeals for the Fourth Circuit, which includes North and South Carolina, articulated a new standard for analyzing claims of hostile work environment and retaliation under Title VII. For employers, the new standard may prove challenging in some respects but may also serve as a call to action.
The previous standard had been set out in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006). In the Jordan case, the Fourth Circuit held in a 2-1 decision that an employee who complained about a single incident of racial harassment – having overheard a racial remark in an employee common area – was not engaged in protected opposition activity under Title VII, because a single remark not specifically directed at the employee could not reasonably be perceived as harassment.
In Boyer-Liberto, the Fourth Circuit overruled the Jordan decision, finding that an isolated incident of harassment, if extremely serious, can create a hostile work environment. The court also held that an employee is protected from retaliation when he or she reports an isolated incident of harassment that is physically threatening or humiliating, even if the offending conduct has not yet ripened into a hostile work environment.
Background of Case
Reya Boyer-Liberto, an African-American former employee at the Fontainebleau Hotel in Ocean City, Maryland, alleged that within a 24-hour period a white employee with close ties to the hotel owner twice called her a racial slur. She complained to the hotel’s human resources department, and the white employee was given a written reprimand. One day later, the hotel terminated Boyer-Liberto for poor performance.
She sued the hotel under Title VII and 42 U.S.C. § 1981, alleging hostile work environment and retaliatory discharge. The U.S. District Court for the District of Maryland granted summary judgment in favor of the hotel and explained that, under existing Fourth Circuit case law, two instances of racial epithets were not “sufficiently severe or pervasive” to instill a reasonable belief in Boyer-Liberto that she had been unlawfully harassed. Consequently, the trial court determined that the hotel had not created a hostile work environment and that Boyer-Liberto was unreasonable in thinking she was protected from alleged retaliation for reporting the epithets.
A three-judge panel for the Fourth Circuit, again relying on earlier case law, affirmed. However, after a grant of rehearing by the entire panel, the full court reversed and announced the new standard, which will allow Boyer-Liberto to return to the trial court for a jury trial.
Under the new standard, the court held that “a reasonable jury could find that [the white employee’s] two uses of the [racial] epithet – whether viewed as a single incident or as a pair of discrete instances of harassment – were severe enough to engender a hostile work environment.” Thus, “an isolated incident of harassment, if extremely serious, can create a hostile work environment.”
As to the retaliation claim, the court held that “an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating” because Title VII protects the employee “who promptly speaks up to attack the racist cancer in his workplace” instead of “remaining silent.” Consequently, employees such as Boyer-Liberto who reasonably believe they have been physically threatened or humiliated “do not have to wait for further harassment before they can seek help from their employers.”
Call To Action
The new standard undoubtedly increases the likelihood that retaliation claims will survive summary judgment and, therefore, proceed to trial. Notably, in a dissent, one judge predicted that the court’s holding would “generate widespread litigation over the many offensive workplace comments made everyday that employees find to be humiliating.” Although the case represents additional challenges to employers in that regard, it also serves as an important reminder to employers and highlights the importance of:
- Taking all harassment claims seriously and investigating them promptly, even where the alleged behavior does not clearly meet any internal definitions of “harassment”;
- Not taking action that could be considered retaliatory against employees who complain in good faith; and
- Staying up-to-date on harassment training for all employees, including within the human resources department.
The Boyer-Liberto case presents employers with an opportunity to review and update harassment training and remind employees that claims of harassment will be taken seriously and investigated promptly.