An occasion of hostile environment harassment always has the potential of E=mc². A recent en banc opinion of the United States Court of Appeals for the Fourth Circuit has lowered the flashpoint.
The case is that of Boyer-Liberto v. The Fountainebleau Corp., No. 13-1473, slip opinion filed May 7, 2015. In the opinion, the Fourth Circuit clarified that "isolated incidents" of harassment can be actionable under Title VII if "extremely serious." The court specifically held that addressing an African-American employee as a "porch monkey" twice within a 24-hour period was severe enough to merit a jury trial on her claim of hostile work environment. Slip op. at 33, 46 & 50.
Overruled was the decision of a divided panel of the Fourth Circuit in a relatively recent case, Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), where the majority in a 2 1 opinion held that a "singular and isolated" exclamation with racist content did not violate Title VII. Jordan highlighted the gray area in hostile environment cases which proceeds from the requirement that the offensive conduct must be "severe or pervasive" enough to alter the offended individual's terms and conditions of employment.
The Jordan approach invited courts to mathematize the analysis of hostile environment cases. One or two off-color jokes might not constitute sexual harassment; the offhand suggestion to a person of mature years that he is older than dirt might not violate the Age Discrimination in Employment Act; or, as in Jordan, referring to African-Americans as "black monkeys" on one occasion was not racial harassment as a matter of law. The decision in Boyer-Liberto assuredly thwarts that trend.
A page of history answers the two fold question why the court would reverse itself so sharply in less than ten years and why it had to. In short, the law historically has been reluctant to provide remedy for insult and hurtful words.
As late as the 1984 fifth edition, the leading treatise on torts still warned that people "must necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind." P. Keeton, et al., Prosser and Keeton on Torts 59. We note, however, the text that went along with "Judge Magurder's well known words, 'that there is no harm in asking,'" which was still included in the 1971 fourth edition, W. Prosser, Handbook of the Law of Torts 55, was deleted in the fifth. We might surmise that Professors Keeton, Dobbs, et al., in the meantime, took heed of the new wave of sexual harassment litigation. See, for example, the groundbreaking work on the subject, Professor Catharine MacKinnon's Sexual Harassment of Working Women (1979).
The old sensibility died harder, however, due to fears of fabricated charges; qualms about infringing on liberty in general and upon the First Amendment particularly; and apprehension over dependence on the courts. Thick skin was said to be a better protection than the law.
In fact, the 21st Century version of such reservations was voiced in dissenting and separate opinions in Boyer-Liberto. The one dissenting Circuit Judge warned that the majority standard would generate widespread litigation over workplace comments made every day, slip op. at 93 94 (Niemeyer, J., dissenting); and that the standard would generate new questions and "much hand wringing" over what harassing conduct would qualify as sufficiently severe, id. at 96 & 105. In a separate opinion, two Circuit Judges joined in warning that the majority decision would cause employers to become "speech police," slip op. at 55 (Wilkinson, J., concurring in part and dissenting in part, joined by Agee, J.).
Nevertheless, without doubt by the decade of the 80s protection was afforded by Title VII against sexual harassment, and at least by the year 1993 protection against racial harassment was similarly introduced into the law. See Brown v. East Mississippi Elec. Power Assn., 989 F.2d 858 (5th cir. 1993). In Brown, the routine use of racial slurs was held to constitute direct evidence of racial animus as a motivating factor in contested disciplinary decisions. Slower to gain recognition was a cause of action for harassment of older workers. However, in these historic times, aging baby boomers remain in the traces in greater numbers well past what would have been considered a normal retirement age not so long ago. The courts are beginning to recognize in the meantime that ageist statements can be illegal. In Dediol v. Best Chevrolet, Inc., 655 F3d 435 (5th Cir. 2011), a 65-year old employee was referred to by his supervisor daily as "old mother ******," "old man," and "pops" (asterisks in the original). The employee asked for a transfer, but the offending supervisor would not allow it. When the offending supervisor stated that he was "going to beat the ****" out of the employee, he left work and did not return. The Fifth Circuit held that on these facts a "hostile work environment" claim could proceed under the ADEA.
After all that, the discussion thus far has addressed barely half of the significance of Boyer-Liberto v. Fountainebleau Corporation. The plaintiff promptly complained to her employer about the racial epithets, and within just a few days her employment was terminated, supposedly for poor performance. Prior to the en banc majority opinion in Boyer-Liberto, the Fourth Circuit standard for retaliation held that an employee's complaint of an isolated incident of harassment was insufficient to protect her from adverse job action unless there was evidence that a plan was in motion to create a hostile work environment or that such an environment was otherwise likely to occur.
That standard, another artifact of Jordan, was rejected in Boyer-Liberto, slip op. at 38. The majority opinion noted that the law compels the victim of a hostile environment to take advantage of preventive or corrective opportunities provided by the employer. However, the earlier standard would deter harassment victims from speaking up, that is, if they complained before the environment was ripe with abuse or trending in that direction then the employee could be perceived as a malcontent subject to at will termination. See slip op. at 39-40.
Instead, the majority opinion in Boyer-Liberto swept away that dilemma by holding that an employee would be protected from retaliation if he or she had "a reasonable belief that a hostile work environment is occurring based on an isolated incident if that harassment is physically threatening or humiliating." Slip op. at 43 (emphasis supplied). In other words, the offended employee does not have to predict the future or assay whether the cast of characters in the workplace is otherwise so virtuous and sensitive that the offensive comment or behavior is assuredly one off. If the present sense impression is one of sufficient physical or mental impact then the offended employee has a sound basis for complaining with impunity.
The majority in Boyer-Liberto carefully pointed out that the case was getting remanded for trial and that based on the evidence a jury would also be entitled to reject both the hostile work environment claim and retaliation claim. Slip op. at 46 & 50. In other words, the plaintiff had sufficient evidence for the case to go to trial where she might win a jury verdict, but the evidence did not establish hostile environment and retaliation as a matter of law. In any event, the Fourth Circuit has joined the D.C. and Eleventh Circuits to create evidentiary standards for claims of hostile environment and retaliation that are more inviting to employees who take offense and register complaints.
The first two rules of risk management are, predict where the next snafu will occur, and then take steps to prevent it. After nearly four decades of preaching and even meddling in the workplace behaviors of employees, management must still remain on high alert for incidents of illegal harassment. More so now than ever before, employers must do what they can to instill habits of civility and mutual respect in the workplace in light of Boyer-Liberto v. Fontainebleau Corporation.
This post is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this post without obtaining the advice of an attorney. If you have questions concerning this post, please contact William Joseph Austin, Jr. at firstname.lastname@example.org or 919.277.9168.
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