Good employers strive to create workplaces where their employees feel safe, respected and valued. Of course, even the most conscientious employers cannot eliminate all conflicts and misbehavior. Implementation and vigilant enforcement of policies and expectations regarding workplace conduct can, however, prevent isolated incidents from evolving into an actionable “hostile work environment.”

As the United States Supreme Court explained in Harris v. Forklift Systems, Inc., Title VII is violated when a workplace becomes “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.’”

There are no bright-line rules for when behavior reaches the level of actionable harassment. Instead, each situation is evaluated based on all the circumstances. The Harris Court provided some guidance for this inquiry by noting that the circumstances “may include 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.”

There is still much room for interpretation, however, and lower courts have often struggled with where to draw the line. A recent case from the United States Court of Appeals for the 4th Circuit provides a useful study regarding what types of environments can reach the point of actionable hostility under Title VII.

In Boyer-Liberto v. Fontainebleau Corp., the plaintiff, an African-American female, worked in a hotel owned by the defendant for less than two months in 2010. During her brief employment, the plaintiff experienced two incidents over the course of consecutive days in which she was berated by a Caucasian co-worker for having gone through the kitchen in order to fill a customer drink order. During both encounters, the co-worker called the plaintiff a “porch monkey.” After the plaintiff complained, managers discussed the matter with both the plaintiff and the co-worker, which resulted in the co-worker being issued a written warning. After being terminated shortly after the incident, the plaintiff brought claims for hostile work environment and retaliation. The district court granted summary judgment to the employer.

On appeal, the 4th Circuit panel acknowledged that the racial epithet “porch monkey” was “highly offensive” and not to be condoned. Nevertheless, the court held that “a coworker’s use of that term twice in a period of two days in discussions about a single incident was not, as a matter of law, so severe or pervasive as to change the terms and conditions of Liberto’s employment so as to be legally discriminatory.” The court emphasized the limited uses of the slur, both stemming from what the court described as a single workplace incident, noting that hostile work environments typically arise from the accumulation of distinct episodes of harassment. In reaching this conclusion, the 4th Circuit distinguished three other cases relied upon by the plaintiff in support of her contention that the two incidents were sufficiently severe or pervasive.



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The 4th Circuit first contrasted the two conversations at issue with a previous case in which evidence of a hostile work environment included 10 harassment incidents over a two year period, several of which were especially offensive and involved a physical threat.

The court also noted that another previous decision involved offensive statements by a supervisor, including “nearly every racist insult one can imagine” and “extending repeatedly over the course of two stints of employment spanning three years.”

Finally, the court differentiated a case from another circuit where two separate “racist comments were made during conversations directly about the plaintiff’s pay and work assignments,” whereas the conversations supporting the plaintiff’s claims did not relate to the terms of her employment.

The panel’s May 13, 2014, ruling will not be the final word, however, as the 4th Circuit entered an order on July 1, 2014, granting a rehearing en banc. The plaintiff’s petition for rehearing argued, among other things, that the panel decision misapplied the “severe or pervasive” test for hostile work environment claims and that the term “porch monkey” is “grossly disrespectful and plays upon racist caricatures and stereotypes too notorious to need reiteration.” The court’s order notes that the case has been calendared for oral argument on Sept. 18, 2014.

Regardless of how Boyer-Liberto is ultimately resolved after en banc hearing, the case illustrates that even relatively isolated incidents of harassment can put employers at risk for hostile work environment claims when the encounters involve actions or epithets that are inherently demeaning and intolerable to a particular class of employees.

While it is impossible for companies to ensure that such language never enters the workplace, the likelihood of actionable incidents can be reduced by implementing and policing an anti-harassment policy that provides meaningful sanctions for inappropriate conduct and creates a reporting mechanism for complaints that makes clear that employees who believe they have been subject to discrimination or harassment can raise such concerns without fear of retaliation.

The potential repercussions of even limited incidents of severe harassment also highlight the importance of conducting regular training to remind supervisors and other employees of what is and is not acceptable behavior. If employees are aware of their responsibilities and know that violations of the company’s harassment policy will result in more than just a slap on the wrist, the occurrence of even isolated episodes can be curtailed.