Fourth Circuit expands protections for harassment victims

Yesterday afternoon, the Fourth Circuit issued an en banc decision supporting the rights of workplace harassment victims.  See Boyer-Liberto v. Fountainebleau Corporation, No. 13-1473 (May 7, 2015).  The opinion offers important insight into what level of harassment is sufficient to support a claim over a hostile work environment, the scope of victims’ protections when they complain about harassment, and what is required for a harasser to qualify as a victim’s “supervisor.”  The court ruled in favor of workers’ rights on each issue.

The plaintiff in case was an African American cocktail waitress.  While on the job, she was threatened and twice called a “porch monkey.”  When she complained, she was terminated.  She filed suit against her employer under Title VII and 42 U.S.C. § 1981.  She alleged she was subjected to unlawful racial harassment and that she was unlawfully terminated because she reported the harassment.  The district court ruled in favor of the employer, granting their motion for summary judgment.  A divided three-judge panel of the Fourth Circuit affirmed.

The full Fourth Circuit reached the opposite conclusion.  It permitted the plaintiff to proceed to trial on both of her claims.  In reversing the district court’s order, the Fourth Circuit addressed at least three important issues, each of which strengthened the rights of workers.

First, the court addressed what is required for workplace harassment to violate the law.  Generally, harassment is only unlawful it is so severe that it creates a “hostile work environment.”  This can be a high bar.  In earlier opinions, the Fourth Circuit restricted the extent to which “isolated comments” could create a hostile work environment – even if they were extremely threatening or humiliating.

In yesterday’s opinion, the Fourth Circuit made clear that “an isolated incident of harassment, if extremely serious, can create a hostile work environment.”  It then held that an apparent supervisor’s use of the term “porch monkey” twice in a twenty four hour period, combined with other threatening statements, could be found by a jury to constitute a hostile work environment.   This ruling establishes that, if sufficiently severe, a supervisor’s harassment need not be repeated over a long period of time in order to give rise to actionable harassment claims.

The opinion’s second important holding addressed retaliation against those who report workplace harassment.  Both Title VII and § 1981 are supposed to prevent employers from disciplining or terminating an employee who complains about what they reasonably believed to be unlawful racial harassment.  But earlier Fourth Circuit opinions had severely restricted that right.  Essentially, the Fourth Circuit used to only protect workers who complained about what could actually constitute a hostile work environment.  If an employee complained about an incident that — although racist, offensive, and humiliating — would not constitute a hostile work environment, employers could often punish the employee for complaining.

Yesterday’s opinion explicitly overruled the Fourth Circuit’s prior standard.  It recognized that the old approach was “at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment.”  Instead, the court held that employees reporting workplace harassment are protected from retaliation “if that harassment is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone.”  The opinion left open the possibility that other types of complaints would also be protected – for example, if an employee complains about an isolated comment that “is merely offensive,” but not humiliating or threatening, the Court suggested that he or she may still be protected if the comment was such that it “would create a hostile work environment if repeated often enough.”  This holding significantly increases protections for employees who want to put a stop to humiliating and threatening workplace harassment.

The opinion’s third important element addressed who qualifies as a “supervisor” for harassment claims.  This is important because if harassment is committed by a non-supervisory co-worker, the victim will have to establish that the employer was negligent in order to trigger employer liability.  Because proving negligence can be difficult in this context, a restrictive definition of “supervisor” could deny many harassment victims any legal recourse.

The Supreme Court recently defined a “supervisor” in this context as someone with the ability to take “tangible employment actions” against the victim, such as a decision to demote or terminate the victim.  In yesterday’s ruling, the Fourth Circuit made clear that the Supreme Court’s definition included some employees who could effectively recommend tangible employment actions, even if they could not independently authorize the actions.  This holding demonstrates that employers cannot insulate themselves from liability by requiring high level employees to simply “sign off” on every employment decision made by potential harassers.

The principal opinion in Boyer-Liberto was joined by twelve of the Fourth Circuit’s fifteen judges.  Click here to read the opinion in full.