On May 7, 2015, the Fourth Circuit (which covers the states of Maryland, Virginia, West Virginia, North Carolina and South Carolina) issued a major ruling that could make it easier for plaintiffs to succeed in employment discrimination and retaliation claims. The court’s en banc ruling in Boyer-Liberto v. Fontainebleau Corp. (No. 13-1473) limits two doctrines that employers had relied upon to win dismissal of lawsuits brought by employees: the “single incident” doctrine and the “reasonable belief” doctrine. In limiting the “reasonable belief” rule, the court overruled major portions of its controversial prior decision in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).
The facts in Boyer-Liberto arise from the relationships between three individuals at the Clarion, an oceanfront hotel in Ocean City, MD:
- Reya Boyer-Liberto, an African-American woman, began working at the Clarion in August 2010. She worked in several roles, including as a restaurant hostess, server, bartender and cocktail waitress. Liberto claimed that she had been assigned to all these different roles as part of her training.
- Leonard Berger, a white man, was the owner of the Clarion.
- Trudi Clubb, a white woman, worked as Food and Beverage Manager at the Clarion. It was not entirely clear from the record whether Clubb had the power to hire and fire employees. Liberto testified that Clubb appeared to be “just Dr. Berger’s friend” who was a “glorified hostess.” There were contrary indications in the record, however: Clubb told Liberto that she could have her fired due to her friendship with Dr. Berger, and a manager at the Clarion described Clubb as Liberto’s “boss” in an email.
In September 2010, Liberto was working as a cocktail waitress at the Clarion’s nightclub when one of her customers ordered a drink called the Hula Hula. The bartender in the main bar refused to make the drink, allegedly because it took too much time and other patrons would start ordering it. Liberto found another bartender in the pub bar who was willing to make the drink. Once the Hula Hula was made, Liberto wished to avoid the bartender in the main bar. So she carried it to the customer through a back path to the nightclub that ran through the restaurant kitchen.
For the offense of walking through the kitchen, Liberto was severely upbraided by Clubb. Clubb’s prolonged tirade against Liberto allegedly culminated in Clubb threatening Liberto by saying “I’m going to get you” and “I’m going to make you sorry.” According to Liberto, Clubb then looked straight at Liberto and called her a “porch monkey.”
The next day, Clubb again angrily reprimanded Liberto for the incident of the previous night. Clubb allegedly threatened that she would “get” Liberto by “going to Dr. Berger,” and again called Liberto a “porch monkey.”
Liberto called the Clarion’s Human Resources director the day after and complained that Clubb racially harassed her. Although Clubb denied using the phrase “porch monkey,” she was given a written warning to be “cautious the language or phrases she uses can not be perceived as racist or derogatory.”
Liberto’s HR complaint prompted Dr. Berger, the Clarion’s owner, to go to her direct supervisor, Richard Heubeck, and ask for the first time whether Liberto was a good employee. Heubeck allegedly gave a negative answer, saying that Liberto had failed in each of her job assignments. Berger then decided to fire Liberto.
After exhausting her administrative remedies, Liberto brought a lawsuit under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 for a racially hostile work environment and retaliation. Liberto’s Title VII and § 1981 were analyzed together, because the substantive standard for liability is the same under both statutes.
The district court dismissed both counts at the summary judgment stage. It dismissed the hostile work environment claim under the “single incident” doctrine, concluding that the two incidents where Clubb allegedly used a racial epithet were not “severe or pervasive” enough as a matter of law to create a “hostile work environment” based on race. Instead, they were mere “isolated incidents.”
The district court dismissed the retaliation claim under the “reasonable belief” rule. It reasoned that Liberto lacked an objectively “reasonable belief” that her work environment was or would become racially hostile based on the two incidents where Clubb used the term “porch monkey.”
A divided panel of the Fourth Circuit affirmed. Subsequently, the full Fourth Circuit granted en banc review (review by all of the active judges of the circuit). By a vote of 12-3, the en banc court reversed the district court and reinstated all of Liberto’s claims. Of the three dissenters, two dissented just from the majority’s holding on the hostile work environment claims. Only Judge Niemeyer would have affirmed summary judgment as to the retaliation claims.
In order to prove a hostile work environment, an employee must show that he was subject to harassing, abusive or threatening behavior that was motivated by a protected trait, such as race or gender (sexual harassment is regarded as a form of gender discrimination under Title VII). In addition, the employee must show that the harassment was “sufficiently severe or pervasive . . . to create an objectively hostile or abusive work environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
In the past, courts have required plaintiffs to meet an extremely demanding standard when the alleged harassment consisted of a “single incident.” For example, in Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998), the Governor of Arkansas allegedly exposed his erect penis to a state employee and asked her to “kiss it.” Most employees would probably consider this unwelcome behavior to be “sexual harassment.” But the court in Jones held that it was not. In the court’s view, the plaintiff’s allegation, even if true, did not rise to the level of “severe and pervasive” conduct. At most, in the court’s opinion, it was “boorish and offensive.”
The district court and Fourth Circuit panel in Liberto, relying on the “single incident” case law, held that the two incidents where Clubb yelled at Liberto and called her a “porch monkey” did not create a racially hostile work environment. The en banc Fourth Circuit disagreed.
It relied first on the evidence in the record that Clubb had “repeatedly and effectively” communicated to Liberto that she could use her friendship with Dr. Berger to have Liberto fired. Thus, there was evidence that Clubb was Liberto’s “supervisor” under Vance v. Ball State Univ., 133 S.Ct. 2434, 2439 (2013), and not a mere co-worker. Case law holds that a supervisor’s use of a racial slur impacts the work environment more severely than a co-worker’s as a factual matter. In addition, an employer can be held directly liable for a supervisor’s harassment if the harassment results in a “tangible employment action” such as firing or demotion (and Liberto was in fact fired).
The en banc court relied secondly on the offensiveness of the term “porch monkey.” It cited several cases where a supervisor’s one-time use of a racial slur was held to create a hostile work environment. Clubb’s tirades, though perhaps “isolated incidents,” thus counted as the sort of “extremely serious” incidents that by themselves can create a racially hostile work environment.
Next, the en banc court turned to the retaliation claim. To establish retaliation, an employee must show that her employer took an adverse employment action against her because she engaged in a protected activity. If an employee utilizes an employer’s internal complaint procedures, as Liberto did, she is said to be “opposing” an unlawful employment practice under Title VII’s “opposition clause.” To establish a “protected activity” under the opposition clause, the employee must show that she complained of activity that either was unlawful under Title VII, or that she “reasonably believed” to be unlawful. That “reasonable belief” must be “objectively reasonable.”
In the past, courts have applied this “objective” standard stringently. Employer anti-discrimination policies typically prohibit a broad range of disrespectful and offensive conduct that might not be deemed by a court to violate Title VII under the “single incident” rule and other legal doctrines. These judicially-created rules are little-known to non-lawyers. Thus, employees who rely on broad employer policies in reporting workplace conduct to HR are often rudely surprised when they are held to the standard of a trained employment lawyer in a subsequent court action.
Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), a case relied upon by the district court and the Fourth Circuit panel majority in dismissing Liberto’s retaliation claims, exemplifies this dilemma. In Jordan, the African-American plaintiff (Jordan) alleged that a co-worker had referred to the infamous Beltway snipers as “black monkeys” while watching a TV news report on their capture in 2002. Jordan reported the comment to his supervisors. He was fired from his job less than a month later. Jordan sued, claiming he was fired in retaliation for his complaint of racial discrimination. The district court dismissed the lawsuit, reasoning that Jordan lacked an objectively “reasonable belief” that his work environment was, or would become, hostile and discriminatory based on the co-worker’s comment. A divided panel of the Fourth Circuit affirmed. The dissenting judge, Judge King, noted that the “black monkeys” comment made by Jordan’s co-worker was “the stuff of which a racially hostile work environment is made,” and thus that “it was entirely reasonable for Jordan to believe that, in reporting the . . . comment to his employers, he was opposing a racially hostile work environment.”
The opinion of the en banc court in Liberto (which happened to be written by Judge King) rejected the reasoning of the Jordan majority and embraced Judge King’s Jordan dissent. It noted first that employees should be encouraged to report harassment early, before they are forced to suffer a full-fledged hostile work environment. Second, it noted that, under what has become known as the Faragher/Ellerth defense, an employee is required to make an internal complaint in order to preserve her claim where her supervisor is the harasser and the employee has suffered no “tangible employment action,” such as firing or demotion. So too, where a co-worker (not a supervisor) is the harasser, an employee is required to prove that the company was negligent in allowing the harassment to occur in order to hold the company liable. This standard would suggest that the employee should report co-worker harassment as soon as possible. Moreover, case law holds that an employee’s general fear of retaliation will not excuse a failure to report.
Under Jordan, the employee is thus placed in a difficult position. If the employee reports harassment before it has “ripened” into what courts consider a full-fledged hostile work environment, the employer might fire the employee for filing a complaint without being liable for retaliation. But if the employee does not report harassment, the employer might defeat a later Title VII claim based on the Faragher/Ellerth defense or a failure to prove negligence. A plaintiff who is not an experienced attorney would be hard-pressed to figure out at exactly what point he should report harassment. The most likely outcome of this confusion is that employees will stay silent in the face of harassment. This result would be contrary to the goal of Title VII to encourage prompt efforts to identify and correct discriminatory behavior. The court in Liberto thus rejected the Jordan standard, and held that Liberto could make out a claim for retaliation.
The effect of Liberto is to relax two doctrines, the “single incident” rule and the “reasonable belief” rule. These doctrines had allowed courts to dismiss many discrimination and retaliation claims by requiring employees to show that they had suffered, or complained about, prolonged and egregious harassment. Going forward, employees should have greater leeway to assert their right to a workplace free of discrimination and harassment without fear of retaliation from their employer.
The experienced attorneys at Bailey & Ehrenberg PLLC handle a wide variety of employment discrimination claims in litigation, and also provide counseling on employment law issues. We can be contacted via www.becounsel.com or at 202-331-1331. This article is not intended to constitute legal advice and should not be relied upon for that purpose.