‘Isolated’ comments back hostile environment suit

Employment lawyers may be recalibrating what it takes to get into federal court on a Title VII retaliation claim in the wake of a May 7 decision by a divided 4^th U.S. Circuit Court of Appeals.

Employers have found sanctuary in a standard that said “isolated incidents” of racial slurs would not support a “hostile environment” claim.

And if an “isolated incident” prompts a complaint to management and management responds by firing the complaining employee, the terminated employee’s retaliation claim has often foundered on the view that the “isolated incident” did not amount to a hostile environment.

The 4^th Circuit’s en banc decision in Boyer-Liberto v. Fontainebleau Corp. reapplied that standard and said an “isolated incident of harassment, if extremely serious, can create a hostile work environment.”

In 2014, the appeals court rejected a Title VII suit filed by Reya Boyer-Liberto, an African-American restaurant hostess who alleged she was fired after reporting that a manager scolded her and called her a “porch monkey” twice in 24 hours. On rehearing en banc, the court issued a split 106-page decision that wrestled with where to draw the line on “isolated incidents.”

The majority opinion recognized that an employee is protected from retaliation when she reports an “isolated incident of harassment that is physically threatening or humiliating,” even if that incident does not engender a hostile work environment.

The court overruled a 2006 decision, Jordan v. Alternative Resources Corp., to the extent it conflicted with Boyer-Liberto.

In Jordan, the 2006 decision, a 4^th Circuit panel said an African-American plaintiff could not sue under Title VII on a claim that he was fired in retaliation for reporting a co-worker’s alleged inflammatory and racist comment upon hearing breaking news about the arrest of the African-American “Beltway snipers” in 2002.

In the new 4^th Circuit decision, three judges dissented, with Judge J. Harvie Wilkinson warning that holding “employers liable for remarks made by one of their employees” in the absence of prior notice to the employer “is all too open-ended.”

“We may assuredly expect the arrival of workplace speech codes,” Wilkinson said.

Manager comments

According to her suit, Liberto had worked for an Ocean City, Md., resort restaurant for only seven weeks when she had a run-in with a white food and beverage manager at the restaurant, who allegedly scolded her and called her names. Although not officially Liberto’s supervisor, the manager assumed that role by virtue of her longstanding friendship with the hotel owner, according to hotel employees.

The court’s majority opinion by Judge Robert King accepted that perspective, determining that the manager “employed racial epithets to cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate Liberto’s employment.”

A reasonable jury could find that the manager’s “two uses of the ‘porch monkey’ epithet – whether viewed as a single incident or as a pair of discrete instances of harassment – were severe enough to engender a hostile work environment,” King wrote.

In Jordan, as in many cases complaining about “isolated instances” of racist remarks, the court denounced the particular alleged comment as “unacceptably crude and racist,” but said it fell short of demonstrating conditions sufficiently “severe and pervasive” as to allow a legal claim.

According to King, the Jordan standard “imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment.”

That standard is also “at odds” with the hope that employees will report harassment early, before it rises to the level of a hostile environment, the majority opinion said. Instead, the Jordan standard deters harassment victims from speaking up by depriving them of protection from retaliation for coming forward.

Under the standard adopted by the en banc court, “an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur.

“The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating,” the majority said.

Could a jury find that Liberto reasonably believed there was a hostile work environment in progress when she reported the manager’s use of the “porch monkey” slur, queried King.

Applying the Liberto standard, “the answer plainly is ‘yes,’” the majority said. It vacated summary judgment for the employer.

Dissent seeks balance

Wilkinson said he would allow Liberto’s retaliation claim to proceed, but would not hold the hotel vicariously liable on the merits of the hostile work environment claim.

Recognizing Liberto’s separate hostile environment claim “would stretch the notion of vicarious employer liability past the breaking point,” Wilkinson wrote. Close monitoring of workplace speech risks turning employers into “private sector analogues of the surveillance state,” he warned.

Where “every ambiguous or unintentionally insensitive remark is going to be reported upstairs, employees naturally will seek to cluster with those who look, act, and think ‘like themselves,’” Wilkinson predicted.

Judge Paul Niemeyer dissented in a separate opinion, writing that he would uphold summary judgment for the employer on both of Liberto’s claims.

King countered that the Liberto standard “is implicated solely when an employee suffers retaliation for engaging in an oppositional activity, and can be satisfied only by showing the objective reasonableness of the employee’s belief that an isolated incident of harassment was physically threatening or humiliating.”