New Fourth Circuit Standard: Single Incident Sufficient For Title VII Hostile Workplace Harassment Claim

Sometimes, once is enough.  In a just issued en banc decision that overturns established circuit precedent, the Fourth Circuit held that a single workplace incident was sufficiently severe to trigger Title VII’s protection.

In Boyer-Liberto v. Fontainebleau Corp., 4th Cir. No 13-1473 (May 7, 2015), an African-American hotel worker was fired after she complained that a white employee had called her a “porch monkey” twice within 24 hours.  During the initial litigation process, the employer won summary judgment because of established Fourth Circuit precedent that a single workplace incident is never severe enough to raise a triable Title VII claim, per Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  A divided Fourth Circuit panel (2-1) affirmed.

In a 12-3 decision, the en banc court overturned circuit precedent to hold a single workplace incident can be “severe” enough to trigger Title VII’s protection, particularly when the alleged harasser asserts supervisory authority and threatens to get the employee fired.  The Fourth Circuit also held that the employee had also raised a triable Title VII retaliation claim because she opposed conduct that she reasonably believed was unlawful racial harassment.

The Fourth Circuit overruled Jordan to the extent that it suggests a viable hostile work environment claim always requires more than a single incident of alleged harassment.  The Fourth Circuit also overruled Jordan‘s holding that an employee fired after complaining about a single incident of alleged harassment cannot claim retaliation unless there is evidence that there was a plan in motion a hostile work environment.

As explanation for the departure and change in court direction, the full Fourth Circuit explained that the “Jordan standard is [] at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment.”   “[R]ather than encourage the early reporting vital to achieving Title VII’s goal of avoiding harm, the Jordan standard deters harassment victims from speaking up by depriving them of their statutory entitlement to protection from retaliation,” the court said.  The court concluded the Jordan standard was “incompatible” with Supreme Court precedent that “Title VII’s antiretaliation provision be interpreted to provide ‘broad protection from retaliation.’”

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