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Fourth Circuit Decision Offers Guidance on Race Discrimination: Hostile Work Environment/Retaliation Claims, Part 1: What Happened and the Law

openphotonet_129_2966_IMG_(1024_x_768)Have you ever wondered how bad your working conditions have to become your work is a “hostile work environment?”  A recent case may help you decide whether you’re in a position to take legal action.

Reya Boyer-Liberto, an African-American woman, sued the Fontainebleu Corporation and her boss Leonard Berger for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.  Liberto alleged that her former employer discriminated against her by allowing a hostile work environment to persist at the hotel where she worked because a coworker yelled at her and called her a “porch monkey” twice within a two-day period.

Despite recognizing the racial slurs as unacceptable, the Fourth Circuit held that Liberto’s coworker’s conduct was too isolated to constitute a hostile work environment, reasoning that a two-day period of racial comments, relating to one altercation, was not sufficiently “severe” or “pervasive” to change a term or condition of her employment or create an abusive workplace atmosphere.

A Match Not Made in Heaven

The lawsuit began with a conflict between Liberto and a coworker, Tracey Clubb, who was a friend of Liberto’s boss, Berger. When they first met, Clubb offended Liberto, saying: “You look like Stacy [another employee], but Stacy’s nice.” A month after Liberto was hired. she passed through the hotel’s bar’s kitchen to have a drink made. While she was doing so, Clubb called out to Liberto from across the room, telling Liberto not to use the kitchen as a shortcut, but Liberto could not hear her. When Clubb finally got Liberto’s attention, she yelled at her for not acknowledging her earlier. Clubb also called Liberto “deaf,” said she was “going to make [Liberto] sorry, ” and called her a “porch monkey.” The next day at work, Clubb scolded Liberto and again called her a “porch monkey.”

Liberto reported the conduct to the company’s Human Resources Director, who took typed notes of the conversation. Clubb denied Liberto’s allegations but was issued a written warning. In the immediate aftermath of the incident, Clarion owner Berger consulted with Liberto’s supervisors about her work performance. During that conversation, Berger noted that Liberto had substantial performance issues and failed a bartender’s test. He decided to fire Liberto’s employment, and notified her of the decision on September 21.

Liberto filed a charge of racial discrimination and retaliation with the United States Equal Employment Opportunity Commission (“EEOC”) and filed suit after the EEOC issued her a Notice of Right to Sue. Defendants asked the district court to drop the case because the offensive conduct was too distant from the adverse employment action against Liberto for the claim to . On April 4, 2013 the court entered judgment for Fontainebleau/Clarion. She appealed to the Fourth Circuit

The Law On Hostile Work Environment Discrimination Claims:

  •  Title VII bans employers from discriminating against an individual regarding her compensation, terms, conditions or other privileges of employment because of her race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1). Requiring an employee to work in a “discriminatorily hostile or abusive environment” is one type of Title VII violation.
  •  The test for a hostile work environment is whether discriminatory remarks are so “severe or pervasive” that they change the conditions of a person’s employment and “create an abusive working environment.”
  • Hostile work environment questions require judges to consider a wide variety of factors, including the frequency of the discriminatory conduct, its severity, and the effect of the conduct of the employee, i.e. whether it is threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.

Come back on Monday for Part 2: What This Case Teaches Us.