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

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