Fourth Circuit Loosens Restrictions on Title VII Harassment and Retaliation Claims

The Fourth Circuit Court of Appeals in Boyer-Liberto v. Fontainebleau has held that a single incident of harassment can be sufficient to create a hostile work environment. The Court further noted 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.”

Reya C. Boyer-Liberto, an African-American, was an employee of the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland. While employed at Fontainebleau she performed a variety of duties. One day, while working as a cocktail waitress, she was twice called a “porch monkey” within a 24-hour period by her Caucasian supervisor. This same supervisor also threatened her with the loss of her job. Boyer-Liberato reported the incident to higher ups at the hotel, only to later be fired by the resort’s owner, Dr. Leonard P. Berger. She subsequently sued, asserting claims of a hostile work environment and retaliation under Title VII. Initially, both the District Court and the Fourth Circuit ruled in favor of the defendants, noting that the conduct in question was not severe or persuasive enough to create either a hostile work environment or a reasonable belief that harassment occurred (as is necessary for a retaliation claim). The Fourth Circuit then granted a rehearing en banc.

On the issue of harassment, the Fourth Circuit placed particular emphasis on the seriousness of the slur in question, finding it sufficiently severe to support a harassment claim. This was further heightened by the fact that it originated with Boyer-Liberto’s superior in conjunction with threats against her job. This led the Court to hold that the single incident of harassment can be enough to create a hostile work environment. 

On the issue of the retaliation complaint, the Court further held that a single incident, if threatening or humiliating is enough to create a reasonable belief that a hostile work environment exists. Under Title VII, an employee is protected against retaliation if they report unlawful employment actions, or employment actions that they reasonably believe to be unlawful. The Fourth Circuit held that the use of the term “ porch monkey” was threatening and humiliating enough to make Boyer-Liberto believe that a hostile work environment existed, and therefore, that an unlawful employment action occurred.

Based on these holdings, the Fourth Circuit vacated the District Court’s judgment and remanded the case. The decision by the Court in Boyer-Liberto could mark the beginning of an expansion of single incident Title VII litigation moving forward.

Marcus Pringle


OSHA Intends to Make Workplace Injury Reports Public by the End of This Year

Assistant Secretary of Labor for OSHA David Michaels spoke to the City Club of Cleveland last week about recent trends in workplace safety. One remark that caught the audience’s attention was that, by the end of this year, OSHA will begin making accident reports filed by employers available to the general public.

Back in 2013, OSHA released a proposed rule to “Improve Tracking of Workplace Injuries and Illnesses.” The rule would amend OSHA’s current recordkeeping regulations to require the electronic submission of injury and illness information that employers are required to keep under existing OSHA standards (Part 104). This includes information the employer enters in injury and illness logs (OSHA Form 300), incident reports (OSHA Form 301) and annual injury and illnesses summary forms (Form 300A). Employers with 250 or more workers would need to submit information from OSHA Forms 300 and 301 on a quarterly basis and information from OSHA Form 300A annually. Employers in “high hazard” industries with 20 or more workers would also be required to submit information from their OSHA Form 300A once a year.

The most controversial aspect of this rule is OSHA’s intent to make this information available online to the public. OSHA would redact employees’ personal information, but the accident histories of individual employers would be available. OSHA claims that publicizing workplace injuries “will nudge employees to better identify and eliminate hazards.” The proposed rule has met strong opposition from employers, who argue that the accident information will be misused and misinterpreted when taken out of context. Safety advocates have also opposed the rule because public disclosure of injury and illness information may chill voluntary reporting by employers.
Despite opposition to the rule, it appears OSHA intends to move forward with publication by the end of the year. We will keep you updated on its status over the next few months.

Nathan Pangrace