On May 7, 2015, the U.S. Court of Appeals for the Fourth Circuit (covering Virginia, North Carolina, South Carolina, West Virginia and Maryland) issued an opinion that potentially makes it easier for employees to survive summary judgment on harassment and retaliation claims. Essential to every viable harassment claim under Title VII of the Civil Rights Act is proof that the conduct at issue was sufficiently severe or pervasive to alter the plaintiff’s terms and conditions of employment and to create an abusive work environment. In Boyer-Liberto v. Fontainebleau Corporation, the question before the Court was whether a single incident of harassing conduct could meet this standard.
The harassment claim at issue in the Boyer-Liberto case was based on two incidents that occurred less than 24 hours apart in which one employee called another employee a “porch monkey.” The federal district court and a panel of the Fourth Circuit found this incident insufficiently severe or pervasive to constitute a racially hostile work environment. After an en banc rehearing before the full court, the Fourth Circuit reversed those decisions and remanded the case to the district court.
Citing the landmark U.S. Supreme Court decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Fourth Circuit noted that an isolated incident that is extremely serious can be sufficient to establish a hostile work environment. The Court further found that the status of the harasser should be considered in determining the severity of the conduct – harassment by a supervisor is more severe than harassment by a co-employee. In Boyer-Liberto, the Court found that the harasser portrayed herself as having the authority to have the plaintiff fired. The Court also found it notable in this case that the harassing conduct involved an invocation of that authority: the harasser threatened “to get” the plaintiff and “make her sorry.” The Court also found that the chosen slur was one of the most odious slurs to African Americans. Considering all of these factors and circumstances, the Court found that a reasonable jury could find that the two uses of the “porch monkey” epithet were severe enough, standing alone, to constitute a hostile work environment. Yet, the Court took it one step further and went on to hold that even a single incident of harassment could constitute a hostile work environment.
Also at issue in the case was the lower courts’ finding that the plaintiff could not base a retaliation claim on her internal complaint regarding the “porch monkey” comments because the plaintiff could not reasonably believe that the comments were severe or pervasive enough to constitute a hostile work environment. Indeed, under current law, a complaint regarding conduct is a protected activity under Title VII only if the complaining employee has a reasonable belief that the conduct is unlawful under Title VII. The Fourth Circuit, en banc, held that such a belief is reasonable if the harassment is physically threatening or humiliating. The Court found that the incident here was humiliating because of the nature of the racial epithet used.
The Court’s decision certainly lowers the bar for an employee to survive an employer’s summary judgment motion on harassment and related retaliation claims.
