Two May Be Company, But Two Racial Slurs in Two Days is Not Enough for a Hostile Work Environment Claim

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Often an employer is forced to defend a lawsuit filed by an employee complaining that he or she was subjected to a hostile work environment based on slurs. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate against an employee as to the terms and conditions of employment because of that employee’s race, color, religion, sex, or national origin. Subjecting an employee to work in a “discriminatorily hostile or abusive environment” violates that provision.

But how much is enough for a plaintiff’s case to go to a jury on a discrimination claim based on a hostile work environment theory? Courts face that question where a defendant files a motion for summary judgment seeking the dismissal of such a claim. The Fourth Circuit Court of Appeals was recently confronted with that very issue in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2014 U.S. App. LEXIS 8901 (May 13, 2014).

District Court Case

Reya Boyer-Liberto, an African-American woman, sued her former employer, Fontainebleau Corporation, which operated the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland, and its owner, Leonard Berger, asserting claims for race discrimination under Title VII and 42 U.S.C. § 1981, and retaliation. Liberto’s race discrimination claims were based on a hostile work environment theory. Factually, her hostile work environment claims were grounded in the use of the racial epithet, “porch monkey,” directed at her over two separate conversations on two consecutive days. Liberto further claimed that she was terminated in retaliation for complaining about those comments.

Liberto worked as a morning hostess at one of the hotel’s restaurants. Because she had a hard time keeping up with the pace of the position and voiced her preference for other jobs in the hotel, she was permitted to work as a server, bartender, and banquet worker.

Liberto had an altercation with a co-worker, Trudi Clubb, on the night of September 14 after Liberto failed to listen to Clubb’s direction. Though she was not one, Clubb considered herself to be a manager. At the end of that quarrel, Clubb called Liberto a “porch monkey.” The following day, Liberto went to Human Resources to complain about Clubb’s conduct. While Liberto was in the HR office, Clubb walked into the office and asked Liberto to speak to Clubb outside about abandoning her post the night before. At the end of that meeting, Clubb again called Liberto a “porch monkey.”

Liberto reported the second offensive comment to HR. The complaint was then forwarded to Berger, who met with Clubb about the comments. Clubb denied making them. Berger nevertheless issued Clubb a written warning.

Shortly after the incident, the hotel’s management team discussed Liberto’s job performance. Berger examined Liberto’s personnel file, noting that she had failed the bartending test. He testified that Liberto acted unprofessionally, failed to adhere to Clarion policy, clashed with other employees, and did not respond well to criticism. Berger maintained that he fired her on September 21 because she failed at four jobs as well as the bartending test. Berger testified that though he was aware of the allegations Liberto made against Clubb, those allegations did not play a role in his decision to terminate Liberto’s employment.

At the conclusion of discovery, the defendants filed a motion for summary judgment.   The district court held that based on the record, the offensive conduct was too isolated to support Liberto’s claim for race discrimination and retaliation and entered an order granting the employer’s motion for summary judgment.

Fourth Circuit Decision

In a panel decision, the Fourth Circuit affirmed the district court’s judgment granting summary judgment to the defendants. Though the appellate court conceded that the term “porch monkey” was racially derogatory and highly offensive, “a coworker’s use of that term twice in a period of two days in discussions about a single incident was not, as a matter of law, so severe and pervasive as to change the terms and conditions of Liberto’s employment so as to be legally discriminatory.” Liberto-Boyer, 2014 U.S. App. LEXIS 8901, at *11–12.

A hostile work environment exists in the workplace when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently sever and pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. at *12. A court examines a variety of factors including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating as opposed to merely an offensive utterance; and whether it interferes unreasonably with an employee’s work performance.

With these principles in mind, the Fourth Circuit concluded that the evidence presented would not allow a reasonable juror to conclude that Liberto’s workplace was sufficiently permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The Court focused on the fact that Liberto pointed to only two conversations about a single incident over two consecutive days. This was in contrast to prior Fourth Circuit case law which has clarified that hostile work environments generally result after an accumulation of discrete instances of harassment. Id. (citing Jordon v. Alternative Resources Corp., 458 F.3d 332, 339 (4th Cir. 2006). Here, the two statements at issue were “singular and isolated” without any showing that Clubb or other Clarion employees made other racist or hostile statements to Liberto.

Based on the same reasoning, the Fourth Circuit also concluded that Liberto failed to demonstrate a hostile work environment under Section 1981. The appellate court further determined that because the two comments were singular and isolated, Liberto could not have had an objectively reasonable belief that she was complaining about conduct that was unlawful under Title VII or Section 1981. Accordingly, she had not engaged in protected activity for the purposes of making out a retaliation claim. On that basis, the Fourth Circuit also affirmed the district court’s dismissal of the retaliation claim.

The Takeaway

There is no bright line as to what constitutes a hostile work environment as a matter of law. This decision may provide some limited guidance to employers on what will not rise to the level of a hostile work environment.

The best way to handle a hostile work environment claim is to avoid it. Make sure your company has anti-discrimination, anti-harassment, and anti-retaliation policies. Review those policies with your managers and employees from time to time. Take employees’ complaints about discrimination and harassment seriously. Investigate complaints thoroughly and in a timely manner. Mete out discipline if and when appropriate. Finally, DOCUMENT, DOCUMENT, DOCUMENT. While employers cannot be at all places at all times to monitor employee behavior, employers can help minimize occurrences of such bad conduct or reduce liability stemming from them.

Topics:  Discrimination, Employer Liability Issues, Employment Policies, Harassment, Hostile Environment, Title VII

Published In: Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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