By Michael J. Burns, courtesy of SBAM Approved Partner ASE
The recent case of Boyer-Liberto v. Fontainebleau Corporation in the Fourth U.S. Circuit addressed the validity of a hostile work environment claim that arose from a single incident. To date, most courts have considered that a hostile work environment is established by multiple incidences of discriminatory conduct that are spread out over a period of time. But in this case the Fourth U.S. Circuit Court of Appeals concluded that a hostile work environment was indeed established by a single incident. Thus it lowered the bar for establishing a hostile work environment claim.
The hostile work environment discrimination complaint alleges that there is “. . . 1) unwelcome conduct; 2) that is based on the plaintiff’s . . . race; 3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and create an abusive work environment; and 4) which is imputable to the employer.” What happened in Boyer-Liberto that was so bad?
The Plaintiff, Ms. Boyer-Liberto, an African-American, started work at the Fontainebleau Hotel in Ocean City, Maryland in August 2010. On the night of September 14, 2010 Boyer-Liberto was working as a cocktail waitress. During the course of filling a customer’s drink order she used a pathway through the kitchen that she was not supposed to use. Ms. Clugg, a white manager, saw her making her way through the kitchen and promptly addressed her. Boyer-Liberto, claiming afterwards that she did not hear Clugg, continued on her way, appearing to ignore her.
Now angered, Clugg followed Boyer-Liberto out of the kitchen, yelling at her for both ignoring her and wrongly cutting through the kitchen. In the course of dressing her down, Clugg said, “I’m going to get you and I’m going to make you sorry,” and called her a “damn (or possibly ‘dang’) porch monkey.”
The next day Boyer-Liberto went to the hotel’s management office to report Clugg’s conduct to Clugg’s boss, the Food and Beverage Director. Clugg then arrived and said to Boyer-Liberto, “I need to speak to you, little girl.” Taking the discussion into the dining room Clugg again reprimanded Boyer-Liberto for passing through the kitchen the night before and again threatened to “get her,” and again called her a “porch monkey.”
Boyer-Liberto took the issue to the hotel’s HR department. HR investigated and deemed Clugg’s behavior bad enough to issue her a written notice on her behavior. Boyer-Liberto’s complaint made its way to the owner of the hotel, who met with the Food and Beverage Director about Boyer-Liberto’s work performance. The Director told the owner she was not doing well, having failed a number of assignments leading up to her position as a cocktail waitress. The hotel fired then Ms. Boyer-Liberto.
Boyer-Liberto filed an EEOC claim, received a right-to-sue letter and promptly sued the hotel, alleging hostile work environment for Ms. Clugg’s behavior and retaliation for being fired.
The lower court, finding that Clugg’s behavior did not rise to the level of harassment or retaliation, granted the hotel’s motion for Summary Disposition. On appeal, a three-judge panel of the Fourth Circuit agreed with the lower court. Then the Fourth Circuit decided to review the case en banc (i.e., all judges together). This body ruled in favor of Boyer-Liberto.
Past decisions on hostile work environment found that conditions had to be sufficiently severe and pervasive, as stated above. In fact, a 2006 decision by the same Fourth Circuit (Jordan v. Alternative Resource Corporation) noted that hostile environment claims by their very nature involve repeated conduct. But neither the District court nor the three-judge panel of the Appeals court found pervasiveness in the Boyer-Liberto case, which was based on one manager making two remarks in one 24-hour period over a single incident.
Why, then, did the en banc Fourth Circuit find differently?
The en banc court noted that the Jordan decision, on which the District Court and the three-judge panel had relied for their decisions, involved co-workers, not a manager. The fact that the offensive behavior in Boyer-Liberto came from a manager, not fellow workers, made that behavior more impactful; further, it necessarily imputed the harassment to the employer.
The Court then looked at the severity of the insulting words spoken, and found that the term “porch monkey” had every bit the vitriol of the worst racial epithets. The Fourth Circuit Court looked to the 1998 U.S. Supreme Court decision ruling Faragher v. City of Boca Raton to support its new position that that harassment, though isolated, can be considered “extremely serious.” That being the case, a hostile environment harassment claim can be established without more frequency that one or two incidents.
The harassment thus established, the Court then recognized Boyer-Liberto’s subsequent firing based on her harassment complaint as proof enough of retaliation.
Though other Courts of Appeal may see the “severity” and “pervasiveness” of a hostile environment situation differently, the federal court has lowered the legal bar. It is now easier for a plaintiff to establish a hostile environment complaint.
It means that employers must be more on the lookout than ever for discriminatory remarks coming from any quarter, be they related to race, sex, religion, etc. Failure to take direct and immediate remedial action can now more easily result in a judgment against them.