Fourth Circuit Holds Two Racial Slurs Did Not Create Hostile Work Environment at Ocean City Hotel

The United States Court of Appeals for the Fourth Circuit held that two uses of a racially offensive slur — the phrase “porch monkey” — directed against an employee by another employee were not sufficiently severe or pervasive as to change the terms and conditions of employment and thereby constitute unlawful discrimination. Boyer-Liberto v. Fountableau Hotel Corp., No. 13-1473, 2014 WL 1891209 (4th Cir. May 13, 2014).

The District Court Case

Reya Boyer-Liberto was a hostess and server at a hotel in Ocean City, Maryland owned by Fountainbleau Hotel Corporation. In September 2010, Boyer-Liberto had an argument with a co-worker, Trudy Clubb. Following the incident, Clubb allegedly referred to Boyer-Liberto, who is Black, as a “porch monkey” on back-to-back days. Boyer-Liberto, who complained about the incident formally to Human Resources, was later terminated by the Hotel for performance-related issues, including failing the Hotel’s bartender exam.

Boyer-Liberto brought claims for discrimination and retaliation under Title VII and 42 U.S.C. § 1981. The District Court granted the Hotel’s Motion for Summary Judgment, holding that the offensive conduct was too isolated to support Boyer-Liberto’s claims for discrimination and retaliation. Boyer-Liberto appealed.

The Fourth Circuit Opinion

On appeal, Boyer-Liberto argued that the District Court erred in ruling that the undisputed facts did not demonstrate a hostile work environment as a matter of law. Specifically, she argued that the use of the term “porch monkey” was particularly severe and humiliating, and that, because the duration of her employment was short, Clubb’s two uses of the term were relatively frequent. Moreover, she argued, because Clubb was physically close to her during the first conversation when the term was used, she was also subjected to a threatening environment.

Writing for a unanimous panel as to the hostile work environment claim, Judge Niemeyer disagreed. He began by reiterating that Title VII makes it unlawful for an employer to discriminate against an individual with respect to her compensation, terms, conditions, or privileges of employment because of her race, color, religion, sex, or national origin. And requiring an employee to work in a “discriminatorily hostile or abusive environment” violates that provision. The Court cited Supreme Court case law in explaining that a hostile work environment exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” In making a determination whether an employer has created an abusive working environment, a court is required to examine “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

The Court acknowledged that use of the term “porch monkey” is highly offensive. However, the Court disagreed with Boyer-Liberto that Clubb’s use of that term twice in a two-day period was so severe or pervasive as to change the terms and conditions of Boyer-Liberto’s employment so as to be legally discriminatory. Particularly important for Judge Niemeyer was the fact that Boyer-Liberto could point to only two conversations, on consecutive days, in which Clubb called her a “porch monkey,” both of which arose from a single incident at the Hotel. As earlier Fourth Circuit cases had established, “[u]nlike other, more direct and discrete unlawful employment practices, hostile work environments generally result only after an accumulation of discrete instances of harassment.” The Court thus concluded that no Fourth Circuit case had ever found a hostile work environment based upon such discrete incidents.

The Court then addressed Boyer-Liberto’s retaliation claim, in which she asserted that her employment was terminated because she complained about Clubb’s “porch monkey” statements. In entering summary judgment on this claim, the District Court had concluded that Boyer-Liberto “lacked an objectively reasonable belief that she was actually being subjected to unlawful harassment.” Boyer-Liberto nonetheless argued that rather than assessing whether she had an objectively reasonable belief of harassment, the District Court, by requiring that the conduct be sufficiently severe or pervasive, required her to prove actual harassment. In arguing that her belief was an “objectively reasonable” one, she relied upon the offensiveness of the “porch monkey” epithet.

The Court again affirmed the District Court’s decision, albeit over a partial dissent by Chief Judge Traxler. Because Boyer-Liberto based her hostile work environment allegation on the isolated conversation with Clubb, the majority held that her belief that a hostile work environment actually existed was unreasonable as a matter of law. Relying upon its analysis of the hostile work environment claim, the Court explained that, “if no objectively reasonable juror could have found the presence of a hostile work environment, as we today hold, it stands to reason that Liberto also could not have had an objectively reasonable belief that a hostile work environment existed.”

The majority concluded that, “while in the abstract, continued repetition of racial comments of the kind [Clubb] made might have led to a hostile work environment, no allegation in the [record] suggests that a plan was in motion to create such an environment, let alone that such an environment was even likely to occur.” Therefore, the Court affirmed that District Court’s dismissal of Boyer-Liberto’s retaliation claim.

Conclusion

Unless the case is overturned after a rehearing en banc, the Boyer-Liberto case should provide employers with some guidance for eliminating (or at least limiting) a plaintiff’s potential success on a hostile work environment claim. The key is to nip offensive behavior in the bud at the earliest opportunity, in order to prevent continued or repeated acts, the accumulation of which will be severe and/or pervasive and lead to judicial recognition of a hostile work environment.

Please contact the authors of this post, or any member of the Labor & Employment group, with questions.