In a Win for Employees, Fourth Circuit Finds That Two Racial Slurs May Support Harassment Claim

The Fourth Circuit Court of Appeals recently made two noteworthy rulings in a single case concerning sexual harassment and retaliation under Title VII. First, as it relates to sexual harassment, the Court found that two racial epithets – even if viewed as an isolated incident – may be sufficiently severe to support the existence of a hostile work environment. Second, the Court held that an employee possesses a reasonable belief of the existence of a hostile work environment – a prerequisite for a retaliation claim – if an isolated incident of harassment is physically threatening or humiliating, such as the two racial epithets at issue in this case.

In Boyer-Liberto v. FontaineBleau Corp., No. 13-1473, Boya-Liberto was an African-American bartender at a hotel. On consecutive nights, a Caucasian supervisor called the bartender a “porch monkey”, said “I’m going to get you”, and threatened to have her fired. The following day, the bartender reported the harassment to a manager, who referred the complaint to Human Resources and the hotel’s owner. Within three days of learning of the alleged harassment, the owner terminated the bartender's employment.

The district court granted summary judgment in favor of the employer and dismissed the case, finding that the manager's conduct was not sufficiently severe or pervasive so as to create a hostile work environment. The Fourth Circuit initially heard the case en banc, and affirmed the trial court's decision. The employee then appealed, and this time, the full Court reversed, recognizing that even though the alleged harassment was isolated, it was sufficiently severe to defeat a motion for summary judgment.

The Fourth Circuit used the alleged severity of the harassment to support its decision to overturn the district court’s ruling on the Plaintiff’s retaliation claim. The district court – and the initial appellate panel – determined that the bartender did not possess a reasonable belief of the existence of a hostile work environment. The Fourth Circuit disagreed, and in doing so stated that a plaintiff possesses a “reasonable belief” that he/she had been subjected to a hostile working environment if the conduct at issue is “physically threatening or humiliating”.

In terms of the harassment claim, this is significant for employers because, to this point, the federal courts typically required some form of touching for a single act to be severe enough to meet the threshold for harassment under Title VII. Despite an absence of touching in this case, the Fourth Circuit noted that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet in the presence of [her] subordinates”.

Further, in terms of the retaliation claim, this decision is also noteworthy because it differs from the approach many courts use to determine whether a plaintiff possesses a reasonable belief when opposing an alleged act of discrimination – that is, whether an employee has a good-faith belief that the complained-of practice violates anti-discrimination laws. Implicit in this standard is that there does not need to be an actual violation of an anti-discrimination law, only a good-faith belief that a violation has occurred. In contrast, the Fourth Circuit appears to conflate the actual existence of a hostile work environment with an employee’s possession of a reasonable belief that unlawful conduct has occurred.

This decision may open the doors to more harassment and retaliation claims, given the standards articulated by the Court. As a result, this case serves as an important reminder for employers to have anti-discrimination and anti-harassment policies in place; to train employees on these policies; to enforce the policies through prompt and thorough investigations and corrective action; and to take caution when imposing an adverse employment action upon an employee who has recently articulated such complaints.  With questions regarding this case, please contact your regular Hinshaw employment attorney.