What Constitutes Harassment? Impact of New Law

Retaliation and harassment are the most commonly filed employment law claims nationwide. After the Fourth Circuit’s recent decision in Boyer-Liberto v. Fountainbleau Corp., No. 13-1473 (4th Cir. May 7, 2015) lawsuits alleging hostile work environment and harassment will only be more difficult for employers to dispose of.  The Fourth Circuit held that a single instance of harassment may create an actionable hostile work environment claim, and that an employee can be protected from retaliation when complaining about harassment, even if the purported harassment is ultimately not severe enough to create a hostile work environment.

Boyer-Liberto, an African-American cocktail waitress, worked at a hotel in Maryland owned by Fontainebleau for seven weeks and was fired after she made a complaint to human resources that a Caucasian supervisor directed a racial slur at her twice in less than 24 hours. Boyer-Liberto filed suit in the Maryland District Court asserting claims for hostile work environment and retaliation.

The employer moved for summary judgment as to the hostile work environment claims arguing that the name calling was too isolated to create a hostile work environment. It also moved for summary judgment as to the retaliation claims, arguing that Boyer-Liberto failed to show that she engaged in protected oppositional activity. The employer claimed that in order for Boyer-Liberto to have engaged in protected activity when making her internal complaint, she had to have reasonably believed that the complained-of behavior was severe or pervasive enough to create a hostile work environment. The employer maintained that Boyer-Liberto could not have reasonably believed the isolated conduct she encountered was severe enough under the circumstances. The federal district court and panel Fourth Circuit Court agreed.

After an en banc hearing before the full Fourth Circuit Court, the district court and panel Fourth Circuit decisions were reversed.  The Fourth Circuit held that the two single incidents were enough to constitute harassment.  The Court went even further holding that a single instance of harassment can be enough to constitute a hostile work environment.  The Court acknowledges affirmative change to the legal landscape it was making recognizing that it “is a first for our court…”

However, the Fourth Circuit went even further expanding employee protections from retaliation. The court held 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.” The court held that the comments made by the supervisor in this case were sufficiently threatening and humiliating to survive a summary judgment motion.

The decision unquestionably makes it easier for plaintiffs alleging hostile work environment claims to survive summary judgment in the Fourth Circuit and is certain to be a game changer for defendants seeking dispositive motions nationwide.  Single incident harassment is frequently alleged and disposed of prior to trial. However, if such claims are now to be litigated to their fullest extent, we can expect to see an influx of this type of litigation.

The decision also expands the potential for retaliation claims and undoubtedly encourage more employees to seek redress for perceived retaliation as this is a further sign that courts will rely on employees subjective perceptions of behaviors in the workplace to establish protected activity. Employers need to educate management to ensure that there is heightened awareness as to the very nature of protected activity.  If management is unable to identify protected activity employers will be vulnerable to retaliation claims.


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