Fourth Circuit Clarifies Standards for Hostile Environment and Retaliation Claims

The entire Fourth Circuit (en banc panel) has reversed a decision that dismissed a plaintiff’s hostile environment and retaliation claims.  In doing so, the Fourth Circuit has clarified the standards for what constitutes actionable harassment in the workplace.  The Fourth Circuit also reaffirmed the principle that an employee is protected from retaliation even when the conduct about which he or she is complaining itself is not severe or pervasive enough to constitute unlawful harassment.

In Boyer-Liberto v. Fountainbleu Corp., 13-1473 (May 7, 2014), the plaintiff was a cocktail waitress in hotel located in Ocean City, Maryland.  Over the course of two days she was twice called a “porch monkey,” and the restaurant manager threatened her with termination.  After she complained to management about the name calling, the hotel owner fired her.  The waitress sued, claiming she had been the victim of racial harassment and that she was fired in retaliation for complaining.

The Fourth Circuit reviewed the district court’s decision to dismiss her case on summary judgment.  The Fourth Circuit clarified that, “an isolated incident of harassment, if extremely serious, can create a hostile work environment.”  The court also 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.”  These are important pronouncements as an earlier case, which the court overruled, strongly suggested that single instances of harassment typically do not violate federal law’s prohibition against harassment.

With regard to the waitress’s retaliation claim, the Fourth Circuit strongly reaffirmed the principle that a plaintiff may pursue a retaliation claim if he or she “reasonably believed there was a hostile work environment in progress” at the time he or she complained.  A plaintiff need not actually prove that the conduct that had occurred up to that point would constitute unlawful harassment at the time of the complaint to management.

The Boyer-Liberto decision discusses a number of issues in the area of hostile environment claims, such as sexual harassment and racial harassment.  It also will be important precedent for all retaliation cases in the states encompassed by the Fourth Circuit (Maryland, West Virginia, Virginia, North Carolina, and South Carolina).