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Fourth Circuit Decision Offers Guidance on Race Discrimination: Hostile Work Environment/Retaliation Claims, Part 2: What This Case Teaches Us

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On Friday, we discussed the recent discrimination case at arising from employment at a hotel bar between Reya Boyer-Liberto and her former employer, the Fontainebleau Corporation. We move on today to what we can learn from this case of racial language used in the service industry.

 

What the Case Teaches Us:

In dropping Liberto’s case, the Fourth Circuit was essentially saying that, even assuming everything that Liberto alleged was true, the conduct she faced did not amount to a hostile work environment while she had been employed by Berger.

If you experience discriminatory treatment at work, you have rights. However, not every case of racism or sexism will be treated as a civil rights violation. How will you know if the conduct was severe enough to create a hostile work environment claim?

  • Your case is more likely to succeed if you have faced multiple, separate instances of discrimination.  Based on the judge’s reasoning in this case, you may have a stronger claim for a hostile work environment if you can point to separate instances where a coworker or third parties dealing with your employer racially discriminated against you that persisted over a longer span of time. Your case may be weaker if you can only point to comments made in relation to an isolated conflict between you and another coworker that didn’t occur over a span of weeks or months.
  • Your case may be more likely to succeed if discriminatory statements were made during conversations about things like pay, work assignments, or other subjects relating to the terms and conditions of employment and had lasting consequences.  If discriminatory comments are made to you during talks about your pay rate, hours, or any other working conditions and leads to changes in working conditions, you may have a stronger case for hostile work environment. This is because the context of those conversations makes it seem more likely that discrimination led to an adverse employment action against you.
  • Be advised, however, that while it is more difficult to succeed on a hostile work environment claim where discriminatory comments have only been made once or twice, it is not impossible. You might be able to succeed in a hostile work environment claim if you can show that your employer permitted one of your coworkers to use language that was sufficiently egregious.  The dissent in this case argued that the Fourth Circuit should follow its holding in a prior case, in which it said that using the N-word, for example, is “more than a mere offensive utterance” and is “pure anathema to African-Americans.”

Remember, each fact pattern falls on a spectrum of possible results.  Liberto’s case was found to be too specific to create a hostile work environment: two incidents over the course of two days did not alter the terms and conditions of her employment.  Another case might have a different result.  One incident, if sufficiently severe, could alter the terms and conditions of employment.  Alternatively, less severe incidents that occur over a longer period of time could also create a hostile work environment.

Each situation requires individual analysis.  Contact us if you have been subject to discrimination or harassment based on race, gender, or other protected class status.