Changing Attitudes in the Fourth Circuit’s Employment Discrimination Jurisprudence
Isolated incidents of harassment may now support hostile work environment claims.
In Boyer-Liberto v. Fontainebleau Corp., a rare en banc ruling earlier this May, the United States Court of Appeals for the Fourth Circuit made clear that serious and humiliating insults at work will not be tolerated under Title VII of The Civil Rights Act of 1976 and 42 U.S.C. § 1981, the federal law that prohibits public and private employers from discriminating against employees on the basis of the employees race, sex, color, national origin, and religion.
In Liberto, Ms. Reya C. Boyer Liberto, an African American was aggressively reprimanded by her manager, Trudi Clubb. Clubb ended her tirade by calling Liberto a “dang porch monkey.” The next day, Liberto reported the remark to Richard Heubeck, the Food and Beverage Manager at the Clarion. During Liberto’s conversation with Heubeck, Liberto was interrupted by Clubb, and again called a “porch monkey.”
Liberto reported both of Clubb’s remarks to Nancy Berghaur, the Human Resources Manager at the Clarion. After Berghaur submitted her report to Dr. Berger, President of the Clarion, Dr. Berger for the first time inquired about Liberto’s performance. Heubeck gave Dr. Berger a negative report on Liberto’s performance. Dr. Berger then fired Liberto on September 21, 2010.
Liberto filed a claim of hostile work environment and retaliation under both Title VII and 42 U.S.C. § 1981
Liberto exhausted her remedies through the Equal Employment Opportunity Commission, and then filed suit in the Federal District Court in Maryland, with a claim of hostile work environment and retaliation under both Title VII and 42 U.S.C. § 1981.
Liberto’s hostile work environment claim
Under both Title VII and § 1981’s hostile work environment prohibition, Liberto had to prove that: (1) there was unwelcome conduct at the Clarion; (2) which was based on her race; (3) which was sufficiently severe or pervasive to alter her conditions of employment and to create an abusive work environment; and (4) which is imputable to Clarion.
Under the third element of the hostile work environment test, the plaintiff must objectively prove the work environment is hostile and abusive. According to Jordan v. Alternative Resources Corp., this determination is made by looking at factors such as the frequency and severity of the discriminatory conduct, whether the conduct is physically threatening or humiliating (compared to a mere offensive utterance), and whether the conduct reasonably interferes with the employees work performance. The district court ruled that under the hostile work environment claim the two incidents of Clubb’s harassment did not rise to the level of severe or pervasive when compared to other Fourth Circuit cases.
In Liberto’s first appeal to the Fourth Circuit, the court agreed with the district court that the harassment did not arise to the severity needed for liability under the hostile work environment test. In drawing this conclusion, the court cited Jordan, which reinforced the idea that hostile work environment cases generally have a theme of repeated harassment over a period of time. Here, both courts decided that it was unreasonable to conclude that based on the two isolated incidents of harassment Liberto’s work place environment was hostile.
Liberto’s retaliation claim
In order for Liberto to successfully assert a claim of retaliation under Title VII and § 1981, Liberto would have to prove that: (1) She engaged in a protected activity (reporting a violation of Title 7 or § 1981); (2) that Clarion took an adverse employment action against Liberto; and (3) that there was a causal link between the two events.
Unlike the unanimous decision of the Fourth Circuit in regards to the hostile work environment claim, Chief Judge, William Traxler dissented on the retaliation claim, and thought it would be reasonable for Liberto to believe that Clubb’s conduct did create, or was going to create, a hostile work environment. It was therefore reasonable for Liberto to report this conduct and subsequently file suit. Judge Traxler was quick to point out that Clubb called Liberto the same name in consecutive days, and also called into question whether Jordan was correctly decided.
The impact of Jordan
In Jordan, Robert Jordan was an African American and overheard a co-worker in a break room say, in regards to the then famous D.C. snipers, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f**** them.” Jordan was fired after reporting the comments, and then filed suit under Title VII and § 1981 for hostile work environment and retaliation.
The case reached the Fourth Circuit and the court ruled that Jordan could not have reasonably believed that a hostile work environment was existing, or that a plan to create one was arising, based on an isolated incident. Since Jordan could not show that a hostile work environment existed, or that a plan to create one existed, reporting this activity to management was not protected under Title VII, and his retaliation claim failed.
The result of Jordan, which was applied by the Fourth Circuit in Liberto, was that when an employee complains of an isolated incident of harassment insufficient to create a hostile work environment, that employee does not possess a reasonable belief that a Title VII violation was in progress, unless they present evidence that a plan existed to create a hostile work environment, or that a hostile work environment was otherwise likely to occur.
The dissent in Jordan argued that Jordan could have had a reasonable belief that a hostile work environment was going to be created if Jordan’s co-worker’s comments were repeated. Further, the court recognized that the “black monkeys” comment is “the stuff of which racially hostile work environment is made.”
The dissent made clear the point of Title VII and other federal discrimination statutes were to prevent discrimination and hostile work environments, and if Jordan reasonably believed that from a single incident a hostile work environment was or could be created, he was engaging in protected activity under Title VII’s retaliation provision.
More importantly in regards to Liberto, the dissent in Jordan made clear the “Catch-22” that employees in Fourth Circuit states found themselves subject to after Jordan. If Jordan felt that he was in a hostile work environment, he would have had to wait until the environment became worse before reporting, or else he would have no retaliation protection. Because prior case law did not allow an isolated incident, unless extremely serious, to rise to the level of severity needed to be considered a hostile work environment, Jordan essentially had to endure harassment that, if continued, would have constituted a hostile work environment.
Fourth Circuit en banc hearing
Ms. Liberto petitioned and received a chance for the Fourth Circuit to rehear the case in a rare en banc hearing. On the second appeal, the Fourth Circuit gave extra credence to hostile work environment claims based on isolated incidences, and the managerial status of Clubb. Although Ms. Liberto did testify in a deposition that she did not think Clubb was her supervisor, she also said that she knew Clubb had power over her, and that Clubb made it clear she could get Ms. Liberto fired by reporting to Dr. Berger, the owner of the Clarion.
Under Vance v. Ball State University, employers are strictly liable for a supervisor harassing behavior if the behavior results in the hiring of the employee, or other tangible employment actions. The Fourth Circuit found that Clubb was a supervisor, as she was able to take employment actions against Liberto. The majority made clear the importance of Clubb’s position and how supervisors can change the terms and conditions of employment in harassing employees, “Clubb employed racial epithets to cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate Liberto’s employment.”
After finding Clubb as a supervisor for purposes of the hostile work environment claim analysis, the court cited Green v. Franklin National Bank of Minneapolis, and made clear that the term “porch monkey” was almost as bad as calling an African American a “nigger.” The court made clear that although Clubb’s remarks were isolated in nature, Jordan does not require more than a single incident of harassment if extremely serious.
Therefore, the court ruled that it was entirely reasonable for Ms. Liberto to believe that she was working in a hostile environment, given the history of the word “porch monkey” in prior cases and Clubb’s supervisory powers.
In regards to Ms. Liberto’s retaliation claim, the court explicitly overturned the rule from Jordan that offered no protection to workers who complained of harassment that was isolated and insufficient to create hostile work environment. The reversal of Jordan aligns with the purpose of Title VII, to stop harassment in the workplace by encouraging workers to speak up, instead of denying them protection. The court made clear this reversal is very important, as “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.”
The new standard
After explicitly reversing Jordan, the Fourth Circuit articulated a new standard for determining whether an isolated incident of harassment is enough for a reasonable person to believe a hostile work environment exists. Under the new standard, “the focus should be on the severity of the harassment…specifically, whether the discriminatory conduct ‘physically threatening or humiliating, or a mere offensive utterance’.”
Summarizing the new rule under the federal discrimination statutes, an employee cannot be retaliated against for reporting isolated incidents of harassment if the employee has a reasonable belief that a hostile work environment exist. In order to prove a reasonable belief that a hostile environment exists based on an isolated incident, fact finders will have to determine whether the isolated incident is physically threatening or humiliating.
The impact of the Liberto standard
So, how has the new standard in Liberto been impacting employment discrimination cases? In Jones v. Family Health Centers of Baltimore, Inc., U.S. District Court Judge James K. Bredar made clear that the rule in Liberto applying to racial slurs also applied to unwanted sexual contact. In Jones, the Liberto rule helped Ms. Pamela Jones win a motion for summary judgment against her. Ms. Jones was sexually harassed at work when a male co-worker repeatedly harassed Jones in a non-severe manner under Liberto, but then got so close to Jones in a hallway he was able to put his hands on her hip and rub his groin area onto her buttocks. The one hallway incident was enough to trigger Liberto and a reasonable belief that a hostile work environment existed (the trial in the Jones matter has not yet been held for further analysis).
Even after being decided a few short months ago in May of 2015, it is clear to see the impact Liberto is having on the Fourth Circuit’s stance in regards to employment discrimination cases. Employers must now be more diligent in their efforts to police potentially hostile remarks from their supervisors, and reasonably minded employees have another tool in their toolbox when pursuing claims.