New bottles, new wine: the en banc Fourth Circuit issues an important decision on workplace racial harassment

Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (4th Cir. May 7, 2015) (en banc).

Much has changed about the Fourth Circuit since 2003, when the New York Times could describe it as the “most aggressively conservative federal appeals court in the nation.” And today, the en banc Fourth Circuit overrules a decision issued under the old dispensation.

The facts of the case are shocking. Reya Boyer-Liberto, who is black, was working as a cocktail waitress when a white manager, prompted by the pettiest of causes, screamed at her and called her a “porch monkey” to her face on two consecutive days. Liberto was fired just a couple of days after she complained about the incidents. 

Liberto filed suit under Title VII. The district court granted summary judgment to the former employer on Liberto’s hostile-work-environment and retaliation claims. The en banc Fourth Circuit now holds that a jury should decide both claims. 

The Fourth Circuit also overrules an earlier decision, Jordan v. Alternative Resources Corp., that put harassed employees in a bind. Jordan seemed to hold that an isolated racist comment could effectively never qualify as a hostile work environment. But it also held that an employee who complained about a single racist comment and was punished for it couldn’t bring a retaliation claim, because the employee’s belief that there was a hostile work environment wasn’t objectively reasonable—such a belief being a prerequisite for a retaliation claim. So employees couldn’t sue over the harassment itself, but they also couldn’t stave off further harassment by complaining to their employer—at least not without putting their jobs at risk. Plus, the law generally requires employees to complain about harassment if they want to win a lawsuit over it. 

The Fourth Circuit now gets rid of this dilemma. Even if an isolated racist comment can’t qualify as a hostile work environment—itself a proposition that the Fourth Circuit’s decision puts in doubt—that comment can be one part of a larger hostile work environment. Or, at least, employees may reasonably so believe. Which means that employees in the Fourth Circuit can now bring retaliation claims if they complain about one comment and are punished for it.