Fourth Circuit Clarifies Standard for Claims Related to an Isolated Incident of Harassment

Practical Law Legal Update 1-612-2071 (Approx. 5 pages)

Fourth Circuit Clarifies Standard for Claims Related to an Isolated Incident of Harassment

by Practical Law Labor & Employment

Background

On September 14, 2010, Reya Boyer-Liberto (Liberto), an African-American cocktail waitress working at the Clarion Resort Fontainebleau Hotel, was confronted by her Caucasian manager, Trudi Clubb, for carrying a cocktail through the kitchen. Clubb approached Liberto, accused her of violating protocol and then ignoring Clubb when she called out to her. Clubb yelled that she would "get" Liberto and called her a "porch monkey." The following day, Clubb confronted Liberto again, once again threatening her and calling her a "porch monkey."

On September 17, 2010, Liberto complained to the human resources department about Clubb's alleged racial harassment, which resulted in a written reprimand for Clubb. The next day the hotel's owner requested (for the first time) a report on Liberto's work performance. When he received a negative report, he terminated Liberto's employment on September 21, 2010.

In January 2012, Liberto filed a lawsuit against Clarion's owner and Fontainebleau, asserting hostile work environment and retaliation claims under Title VII and 42 U.S.C. § 1981. The district court granted summary judgment in favor of the defendants. Relying on the Fourth Circuit decision in Jordan v. Alternative Resources Corp., the district court found that:

Clubb's conduct was not severe or pervasive enough to create a hostile work environment.
Clubb's conduct would not instill in Liberto a reasonable belief that she was unlawfully harassed to the degree of protecting her from retaliation.

(458 F.3d 332 (4th Cir. 2006).)

A Fourth Circuit panel also relied on Jordan in unanimously affirming the district court's grant of summary judgment to the defendants. The panel noted that the two uses of the term "porch monkey" did not change the terms and conditions of Liberto's employment and that Liberto had not pointed to any Fourth Circuit case that found a hostile work environment based on one incident. Liberto sought a rehearing en banc by the Fourth Circuit.

Outcome

The Fourth Circuit reversed the grant of summary judgment for the employer. In vacating the summary judgment award on Liberto's hostile work environment claims, the court found that:

To win a Title VII racial hostile environment claim, a plaintiff must show that:
- there was unwelcome conduct;
- the unwelcome conduct was based on race;
- the unwelcome conduct was sufficiently severe or pervasive to alter the individual's employment conditions and create an abusive environment; and
- the unwelcome conduct was imputable to the employer.
(Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011).)
It could not determine on this record whether Clubb was actually Liberto's supervisor, but:
- Clubb had asserted her power during the harassment and made it clear to Liberto that she could have Liberto fired; and
- although Liberto understood Clubb not to be her manager, Liberto reasonably believed that Clubb could terminate her employment or influence the termination of her employment.
A reasonable jury could find that Clubb's conduct was severe enough to constitute a hostile work environment as she used racial slurs as part of a series of explicit threats concerning Liberto's employment status.
The derogatory racial term "porch monkey" is extremely serious. The court noted that no single act can more quickly alter employment conditions and generate an abusive work environment than the use of racial slurs (Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Circ. 2001)).

The court noted that:

This was the first time it has found a hostile work environment based on an isolated incident of harassment.
The court's prior decisions (including Jordan) were not intended to require multiple incidents of harassment to constitute a hostile work environment.
The Supreme Court has stated that an isolated incident of harassment, if extremely serious, can create a hostile work environment (Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

In vacating the summary judgment award on Liberto's retaliation claims, the court:

Noted that an employee is protected from retaliation when she opposes employment actions actually unlawful under Title VII or that she reasonably believes to be unlawful. This violation may be complete, or it may be in progress (EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005)).
Overturned Jordan's finding that an employee who complained of an isolated incident of harassment that was insufficient to create a hostile work environment can only reasonably believe that a Title VII violation was in progress if the employee could provide evidence that a plan was in motion to create a hostile work environment or that such an environment was likely to occur.
Stated that the Jordan standard conflicted with other Supreme Court cases that direct Title VII's anti-retaliation provision to be interpreted broadly (See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173-75 (2011)).
Set a new standard for determining whether an isolated incident of harassing conduct prompts a reasonable belief that a hostile work environment is in progress (generating protection from retaliation). Under the new standard:
- the assessment should be based on the severity of the conduct;
- a reasonable belief that a hostile work environment is in progress can occur when the incident is physically threatening or humiliating; and
- the employee is not required to provide additional evidence that a plan is in motion to create a hostile environment or that a hostile environment is likely to occur.
Found that Liberto met the new standard and showed that Clubb's harassment was sufficiently severe to render reasonable Liberto's belief that a hostile environment was occurring.
Noted that on remand, a jury is entitled to reject Liberto's hostile work environment claims but still award relief on the retaliation claims by finding that Clubb’s conduct was not sufficiently serious to amount to a hostile environment but was severe enough to give Liberto a reasonable belief that a hostile environment was in progress.

The dissent argued that:

The majority's reading of Faragher is incorrect and that the Supreme Court created controlling language in that case which requires multiple incidents to amount to a hostile work environment, when it stated that:
- "A recurring point in [our hostile environment] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment"; and
- a mere "utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not sufficiently alter terms and conditions of employment to violate Title VII."
(524 U.S. 775, 787-88 (1998).)
Clubb's conduct constituted an isolated incident, not a hostile work environment.
The new standard will generate widespread litigation over common racial friction in the workplace.

Practical Implications

The Fourth Circuit's decision in Liberto and the overruling of Jordan are significant victories for employees in that circuit. They are given enhanced protection if they are terminated or otherwise retaliated against for reporting or complaining about isolated incidents of racial harassment. Based on Liberto, employers must highly scrutinize what they and their high-ranking employees say to employees, because a single severe comment or action could lead to a sustainable meritorious hostile work environment or retaliation lawsuit.

Fourth Circuit Clarifies Standard for Claims Related to an Isolated Incident of Harassment | Practical Law