Single Incident of Severe Verbal Harassment Can Be Sufficient to Establish a Hostile Working Environment

In Boyer-Liberto v. Fontainebleau Corp., 2015 WL 2116849 (4th Cir. May 7, 2015), the Fourth Circuit recently held that an isolated, but "extremely serious" incident of verbal harassment can establish a hostile work environment claim under Title VII of the Civil Rights Act and 42 U.S.C. § 1981 and a corresponding claim for retaliation. This decision follows on the heels of the Sixth Circuit’s recent decision that "a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII."

In Boyer-Liberto, the plaintiff worked as a cocktail waitress at a resort hotel. She alleged that one night, while serving drinks to a customer, an alleged manager pulled her aside and began yelling at her because she believed the plaintiff was ignoring her. During this incident, the manager allegedly called the plaintiff a "porch monkey."

The next day, the plaintiff met with the hotel’s Food and Beverage Director to complain about her manager’s behavior. The manager interrupted the meeting and took the plaintiff aside. The manager reprimanded the plaintiff and again allegedly called her a "porch monkey." The plaintiff complained to the Human Resources Director the next day that the manager had racially harassed her.

Shortly after making her complaint, the hotel’s owner began asking the plaintiff’s supervisors about her performance. The owner claimed that the supervisors gave negative evaluations of the plaintiff and, based on those reviews, the hotel terminated her employment.

The plaintiff filed suit alleging hostile work environment and retaliation under Title VII and 42 U.S.C. § 1981. The defendants argued that: (1) the alleged racial epithets could not support a claim for hostile work environment because they were too isolated, and (2) the plaintiff’s complaints about her alleged manager were not protected conduct because she could not have reasonably believed that the manager’s statements were sufficiently severe or pervasive to create a hostile work environment. The district court granted summary judgment for the defendants, but the court of appeals, in an en banc decision, reversed.

First, while acknowledging that hostile work environment claims often involve repeated conduct, the court observed that an "extremely serious" isolated incident of harassment can create such an environment. In measuring the severity of the conduct, the court stated that, due to a supervisor’s power and authority, a racial epithet used by a supervisor would impact the work environment far more severely than if it was uttered by a co-worker. The court also considered the racial epithet used and found that it carried strong negative connotations and went "far beyond the merely unflattering; it [was] degrading and humiliating in the extreme." Thus, the court concluded that a reasonable jury could find that the alleged manager’s two uses of the racial epithet were severe enough to create a hostile work environment.

Second, the court reiterated that complaining about alleged harassment is protected conduct even before a hostile work environment has fully developed, so long as the employee has a reasonable belief that such an environment is in progress. The court held that when assessing the reasonableness of an employee’s belief, "the focus should be on the severity of harassment," and that an employee will have a reasonable belief a hostile work environment is developing if an isolated incident is physically threatening or humiliating. Applying this standard, the court found that the plaintiff could have reasonably believed a hostile work environment in progress when she complained about her manager’s use of a racial epithet.

The Fourth Circuit’s decision in Boyer-Liberto likely will make it easier for employees to avoid summary judgment on claims of a hostile work environment and retaliation that are based on what otherwise would have been dismissed as isolated derogatory statements. As a result, employers should ensure that all of their supervisory employees are trained on what constitutes discriminatory conduct and how it can be remedied.