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Isolated Use of Racial Slurs Can Make a Hostile Work Environment

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By Casey C. Sullivan, Esq. on May 26, 2015 4:04 PM

The repeated use of a racial slur in an isolated incident can create a hostile work environment, the Fourth Circuit ruled en banc earlier this month. While the Supreme Court has repeatedly held that outlying incidents of discriminatory language or actions often do not create an hostile work environment under Title VII of the Civil Rights Act; at the same time, the Court has emphasized that some instances, when sufficiently severe, can alone create such a violation.

The Fourth Circuit is one of the first courts of appeals to find that a single incidents of racially discriminatory language can create be sufficient enough to violate the Civil Rights Act. Further, the court found that employees who report those isolated incidents of harassment are protected from retaliation.

Overruling Jordan

Reya Boyer-Liberto worked as a cocktail waitress in Ocean City, Maryland, when her restaurant manager screamed in her face, twice called her a "porch monkey" and threatened her job. The manager also attempted to keep Liberto from reporting the incident. When Liberto did report it to higher ups, she was quickly fired. She brought suit, alleging that the comments were racially discriminatory and created a hostile work environment and that she had been impermissibly fired in retaliation when she reported them.

Liberto's suit was originally dismissed based on the court's decision in Jordon v. Alternative Resources Corp. In that case, the Fourth Circuit refused to allow a suit to move forward after the use of a racial slur in an isolated incident where there was no evidence that the conduct "will continue or will be repeated unabated."

A reasonable jury could have found that the use of "monkey" to describe an African American employee, even if used in only one incident, was sufficient to create an abusive working environment, the Fourth held, overruling Jordon. Further, Liberto was subject to protections against retaliation because one could have reasonably viewed her reporting of the incident as an attempt to end an impermissible employment practice -- namely a hostile, discriminatory work environment.

Expanding Workplace Protections

The Fourth Circuit's decision goes far in expanding protections under the Civil Rights Act. The Supreme Court has repeatedly stated that "mere utterance of an ethnic or racial epithet" does not typically create a hostile work environment.

However, some activity, even if not pervasive, can be "sufficiently severe" that isolated incidents will suffice to create a hostile work environment. Racial slurs such as those used in this incident could reasonably be taken to be sufficiently severe, the court found, potentially opening up a new front in civil rights employment lawsuits.

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