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Fourth Circuit Undermines Retaliation Law

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 certainly disagree on that point. But the Fourth Circuit is a conservative appellate court and hostile work environment is a difficult claim, so I can understand it.  But what the Court did next with plaintiff’s retaliation claim was really quite shocking. The Court also upheld the dismissal of the Plaintiff’s retaliation claim on the ground that Plaintiff’s belief that she was suffered a Title VII violation was not “objectively reasonable.”   According to the Court, because the “porch monkey” comments did not meet the standard for a hostile work environment claim, Plaintiff’s belief that she suffered Title VII injury could not have been “objectively reasonable.”

What now? I mean….really?

The Fourth Circuit is actually on record as saying that if an African American employee is called a “porch monkey” at work, that employee does not have an “objectively reasonable” belief that the comment violated Title VII? Let’s just pause for a moment and let that sink in.

Amazingly, the Fourth Circuit so ruled despite the fact that the Plaintiff’s EMPLOYER disciplined (in writing) the employee who made the “porch monkey” comments.  So, at minimum, the employer itself thought the comments had no place in a workplace.  Is it really unreasonable for Plaintiff to have believed the comments violated Title VII?

I understand that the Court ultimately found that the “porch monkey” comments were too sporadic to state a hostile work environment claim.  But let’s assume for a just a moment that the Plaintiff, a hostess working in a restaurant, is not an expert in the legal intricacies of hostile work environment law.  She’s never heard of the “severe or pervasive” standard; much less can she be expected to determine when highly offensive racial comments are too episodic to sustain a claim challenged through a summary judgment motion.  What she knows is that she was just called a “porch monkey” at work.  And an “objectionably reasonable” person would certainly think that’s a Title VII violation.

Judge Traxler ably points this out in his dissent.  He states:

I believe that [Plaintiff] could have reasonably believed that [the] conduct was actionable.  I share in the sentiment of Judge King…that our very narrow interpretation of what constitutes a reasonable belief in this context has ‘placed employees who experience racially discriminatory conduct in a classic Catch 22 situation.  They can either report the offending conduct to their employer at their peril as the Supreme Court has essentially required them to do to preserve their rights or they can remain quiet and work in a racially hostile and degrading work environment with no legal recourse beyond resignation. Like Judge King, I cannot accept that an employee in circumstances like these can be forced to choose between her job and her dignity.

Well said, Judge Traxler.

This decision is also notable for an evidentiary reason.  Apparently, interrogatory responses that include the disclaimer that the responding information is “not based solely upon [plaintiffs] knowledge…but include[s] the knowledge of her agents, representatives, and attorney” will NOT be sufficient to contest summary judgment.  So if that disclaimer is in any standard interrogatory responses, take it out unless it’s absolutely necessary.

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