May 2014

For us experienced employment lawyers, the Fourth Circuit’s recent retaliation decision inBoyer-Liberto v. Fontainebleau Corp. (May 13, 2014) is a stunner. The central facts of the case are that a non-manager employee of the Defendant twice referred to the Plaintiff as a “porch monkey.”  The Fourth Circuit determined that because the comments, offensive as they were, only occurred on two isolated occasions, the Plaintiff’s hostile work environment claim was properly dismissed on a summary judgment motion.  The two highly offensive comments, the Court ruled, were not “severe or pervasive” enough to alter the terms and conditions of the Plaintiff’s employment. I…

Employers cannot avoid Title VII liability when their customers harass their employees by adopting a “see no evil, hear no evil” strategy.  That was the message this month from the Fourth Circuit in Freeman v. Dal-Tile Corp.  In a decision written by Judge Shedd and joined by Chief Justice Traxler, a divided panel formally adopted a negligence standard for when an employer is liable for the harassing acts of third-parties, including customers, directed at its employees.  The Court stated: “[A]n employer is liable under Title VII for third parties creating a hostile work environment [for its employees] if the employer knew...

A federal appeals court has reinstated a lawsuit against North Carolina-based Family Dollar that says female managers were paid less than male store managers. The Charlotte Observer reported a panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., overturned a Charlotte judge’s order that had effectively ended the case. An attorney representing about 50 store managers says the Matthews-based company discriminates against female managers. Attorney Roberts Wiggins says pay discrepancies between male and female store managers averaged about $2,500 a year, about 10 percent of their pay. Family Dollar has asked the full appeals court consider the...