Last week’s decision by the Fourth Circuit in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (4th Cir., May 7, 2015) now means that in the Fourth Circuit, a single instance of harassment may create an actionable hostile work environment claim, and that an employee can be protected from retaliation when complaining about harassment, even if the purported harassment is ultimately not severe enough to create a hostile work environment. The Fourth Circuit’s decision to overturn summary judgment in favor of the defendant-employer signals an uphill battle for employers’ attempting to obtain summary judgment on matters where hostile work environment is alleged. The standard for a viable hostile work environment or harassment claim under Title VII is that the conduct at issue is sufficiently severe or pervasive to alter the plaintiff’s terms and conditions of employment, thus resulting in an abusive environment. Single incidents, stray comments, or isolated utterances have long been held insufficient to meet the standard. The Fourth Circuit deviated from this standard when it found that an isolated racial slur by a supervisor was sufficient, by itself, to allow both a hostile work environment and retaliation claim to proceed to trial.
Boyer-Liberto, an African-American cocktail waitress, worked at a hotel in Maryland owned by Fontainebleau for seven weeks and was fired after she made a complaint to human resources that a Caucasian supervisor directed a racial slur at her twice in less than 24 hours. Boyer-Liberto filed suit in the Maryland District Court, asserting claims for hostile work environment and retaliation.
The employer moved for summary judgment as to the hostile work environment claims arguing that the name calling was too isolated to create an environment that a reasonable person would find abusive. It also moved for summary judgment as to the retaliation claims, arguing that Boyer-Liberto failed to show that she engaged in protected oppositional activity. The employer claimed that in order for Boyer-Liberto to have engaged in protected activity when making her internal complaint, she had to have reasonably believed that the complained-of behavior was severe or pervasive enough to create a hostile work environment. The employer further maintained that Boyer-Liberto could not have reasonably believed the isolated conduct she encountered was severe enough under the circumstances. The federal district court and panel Fourth Circuit Court agreed, finding the isolated incidents to be insufficiently severe or pervasive to maintain a hostile work environment claim or to create a reasonable belief that a hostile work environment had occurred.
Last week, after an en banc hearing before the full Fourth Circuit Court, the district court and panel Fourth Circuit decisions were reversed. Not only did the Fourth Circuit hold that the two single incidents were enough to constitute harassment, they went even further, holding that a single instance of harassment can be enough to constitute a hostile work environment. U.S. Circuit Judge Robert B. King addressed the affirmative change to the legal landscape: “We … acknowledge that this is a first for our court … We reject, however, any notion that our prior decisions were meant to require more than a single incident of harassment in every viable hostile work environment case.”
The Fourth Circuit also expanded on employee protections from retaliation. The court 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 that incident alone.” The court held that the comments made by the supervisor in this case were sufficiently threatening and humiliating to survive a summary judgment motion.
This decision unquestionably makes it easier for plaintiffs alleging hostile work environment claims to survive summary judgment in the Fourth Circuit. More importantly, the decision is certain to be a game changer for defendants seeking dispositive motions on such claims nationwide. Single incident harassment is frequently alleged and disposed of prior to trial. However, if such claims are now to be litigated to their fullest extent, we can expect to see an influx of these claims. Retaliation claims are the most common in the employment litigation landscape nationwide. This decision will undoubtedly encourage more employees to seek redress for perceived retaliation as courts are now able to rely on an employee’s subjective perceptions of behaviors in the workplace to establish protected activity.
By Martha P. Brown, Dove A.E. Burns & Michael F. Lettiero of Goldberg Segalla