HOSTILE WORK ENVIRONMENT AND RETALIATION CLAIMS CLARIFIED
BY FOURTH CIRCUIT
On May 7, 2015, the United States Fourth Circuit Court of Appeals, which governs cases
arising in North Carolina, provided a strong signal that it is relaxing its view regarding
what may constitute a hostile work environment by lowering a plaintiff’s burden at the
summary judgment stage of litigation. In so doing, it also affirmed that an employee is
protected from retaliation even if the conduct about which the employee is complaining is
not severe or pervasive enough to constitute unlawful harassment. This case, together
with a case decided by the Fourth Circuit in December 2014, establishes important
precedent for such cases going forward.
In the case of Boyer-Liberto v. Fountainbleu Corp., the plaintiff was a black cocktail
waitress at the Clarion Resort Fountainbleu Hotel located in Ocean City, Maryland. Over
the course of a 24-hour period, she was verbally berated twice by her manager, who
yelled at her for passing through the kitchen on her way to the server station with threats
that included “I’m going to get you” and “I’m going to make you sorry” and concluded
with calling Boyer-Liberto “a “damn porch monkey.” The next day, the plaintiff went to
Clarion’s management office to report her manager’s conduct to the food and beverage
director and her manager repeated these threats and the derogatory reference in that
meeting. Upon investigating these incidents, Clarion terminated the plaintiff’s
employment four days after her harassment complaint. Boyer-Liberto sued the hotel,
claiming that she had been the victim of racial harassment and that she was fired in
retaliation for complaining about it.
The district court granted the hotel owner’s motion for summary judgment. The Fourth
Circuit reversed the district court’s decision, stating that “an isolated incident of
harassment, if extremely serious, can create a hostile work environment.” The court
further held that “an employee is protected from retaliation when she reports an isolated
incident of harassment that is physically threatening or humiliating, even if a hostile work
environment is not engendered by the incident alone.” In remanding the case back to the
trial court, the appeals court found that a genuine issue of material fact existed for a jury
to decide whether a supervisor’s use of a racial slur on two occasions was severe conduct.
In so doing, the Fourth Circuit determined that an employee is protected from retaliation
for opposing an isolated incident of harassment if the employee reasonably believes a
hostile work environment is in progress. In measuring the severity of the conduct, the
court held that the status of the harasser may be a significant factor and that a
supervisor’s use of a racial epithet could impact the work environment significantly.
This ruling represents somewhat of an about-face for the appeals court, which had
previously suggested that single instances of harassment typically do not violate the
federal prohibition against harassment. This case, combined with another very recent
decision by the Fourth Circuit in December 2014, in which the court held that “boorish
comments” from coworkers to a female employee of a company that builds modular
homes could have led a reasonable juror to find the employer responsible for creating or
condoning a hostile work environment, reinforces the importance of training supervisory
employees in particular, as their conduct can not only lead to vicarious liability for the
employer, but can also affect whether a court will find that the employee has presented
the essential elements of a harassment or retaliation claim. When training managers and
supervisors regarding how to address employee complaints, they need to be reminded
that no complaint is too minor to be taken seriously and that unchecked inappropriate
behavior is often repeated. By ignoring one employee’s complaint of harassment, an
employer risks exposing a number of employees to behavior that has no place in the
workplace.
If you have questions or concerns about this case or other legal issues, please feel free to
contact Governmental Affairs Director Connie Carrigan at
ccarrigan@smithdebnamlaw.com.