United States: Fourth Circuit Court Of Appeals Holds Hostile Work Environment Can Be Created With A Single Racial Epithet

Executive Summary:

Despite consistent direction from the United States Supreme Court that courts should look at "all the circumstances" in determining whether a workplace environment is sufficiently hostile or abusive to give rise to an actionable claim of harassment, see, e.g., Faragher v. City of Boca Raton (1998), the Fourth Circuit Court of Appeals has held that a supervisor who called an African-American employee a "porch monkey" twice in a 24–hour period transformed the workplace into a racially hostile environment in violation of Title VII of the Civil Rights Act of 1964 (Title VII). The decision, Boyer-Liberto v. Fontainebleau Corporation (4th Cir. 2015), not only concludes that a hostile environment can be created by a single offensive utterance but also that an employee who reports such offensive speech to management is protected from retaliation so long as the employee reasonably believes the conduct was in violation of Title VII.  

Employers within the jurisdiction of the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina) must now be wary of too quickly dismissing an employee's complaint that a supervisor's racial or sexual comment created a hostile work environment. Further, employers must realize that the complaining employee assumes a protected status as a result of the complaint and may have a claim for retaliation if the employee is subsequently disciplined or discharged.   

Legal Analysis

In Meritor Savings Bank v. Vinson (1986), the Supreme Court's landmark decision on hostile environment sexual harassment, the Court noted that the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee "would not affect the conditions of employment to sufficiently significant degree to violate Title VII." Subsequent decisions by the Court have reaffirmed the principle that "simple teasing, offhand comments, and isolated incidents (unless extremely severe) will not amount to discriminatory changes in the terms and conditions of employment. Faragher; Clark County School District v. Breeden (2001) (chuckling of male co-employees over an applicant's admission that he had once commented to a co-worker that "I hear making love to you is like making love to the Grand Canyon" was at worst an "isolated incident" that could not "remotely be considered 'extremely serious'").

The Supreme Court's test for an actionable hostile environment harassment claim is satisfied by conduct that is either "sufficiently pervasive" or "sufficiently severe." Nevertheless, isolated single incidents or comments have generally not been found to create an abusive or hostile environment unless the incident or comment is quite severe. Courts have been willing, however, to find a hostile environment when the single incident is a physical touching. Similarly, racially motivated physical threats (e.g., using a noose or snapping a bullwhip), even though isolated incidents, have been found to be an egregious form of workplace harassment.

In contrast, isolated racial, ethnic or gender-related slurs, especially when uttered by co-employees and not supervisors, have not uniformly been regarded as sufficiently severe to create a hostile work environment. For example, in Butler v. Alabama (11th Cir. 2008), a white employee on his way to lunch with a black co-worker collided with another vehicle driven by a black male. After the collision, the white employee called the other driver a "stupid ass n----r."  In a subsequent lawsuit several months later, the black co-worker claimed he was fired for reporting the white employee's offensive language during the traffic accident.

The court of appeals held that the white employee's remarks, although "uncalled for" and "ugly," did not create a racially hostile environment. The court said: "It is objectively unreasonable to believe that the use of racially discriminatory language on one occasion by one co-worker away from the workplace is enough to . . . 'alter the conditions of the victim's employment and create an abusive working environment.'" See also Robinson v. Cavalry Portfolio Services, LLC (10th Cir. 2010) (co-worker's isolated racist comment to a white co-worker married to a black man was not sufficient to create a hostile work environment.)  

In Boyer-Liberto, a white food and beverage manager called a black cocktail waitress a "damn porch monkey" and threatened to report her to the hotel owner. In fact, after the plaintiff complained to Human Resources about the "porch monkey" comment, the hotel owner did fire her for alleged poor performance. The Fourth Circuit Court of Appeals concluded that the beverage manager's conduct was sufficiently threatening to alter the terms of the plaintiff's employment. The court said 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 – was severe enough to engender a hostile work environment." The court said, "[S]uggesting that a human being's physical appearance is essentially a caricature of a jungle beast goes far beyond the mere unflattering; it is degrading and humiliating in the extreme."

The Fourth Circuit thus joins other federal and state courts that have recognized that a single incident of invidious harassment can create a hostile work environment. See, e.g. Daniels v. Essex Group, Inc., (7th Cir. 1991) (indicating a single instance of racial harassment can establish a hostile work environment); Reid v. O'Leary, (D.D.C. 1996) (holding that the use of one epithet ("coon-ass") was so racially derogatory, in and of itself, to create a hostile work environment).

Bottom Line for Employers

No employer expects that its supervisors will use racial, ethnic or gender-related slurs when dealing with subordinate employees. Nevertheless, the single incident standard endorsed by the court of appeals in Boyer-Liberto assigns potential liability to employers for creating a hostile work environment on just such unanticipated utterances. Every complaint about an insensitive workplace remark must now be given credence, for to ignore even one seemingly outlandish accusation could result in liability. Seventeen years ago, the Supreme Court said Title VII was not meant to be "a general civility code for the American workplace." Oncale v. Sundowner Offshore Servs., Inc. (1998). The Fourth Circuit's holding in Boyer-Liberto ignores this express reservation and, instead, requires vigilant enforcement of workplace civility by employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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