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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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Isolated utterances can be found to be “extremely serious” and severe and pervasive enough so as to change the terms and conditions of one’s employment and create a hostile work environment, according to the 4th U.S. Circuit Court of Appeals.
Reya C. Boyer-Liberto, a black woman, worked at the Clarion Resort Fountainebleau Hotel, an oceanfront hotel in Ocean City, Md., containing several restaurants and bars. During the seven weeks she was employed with the Clarion’s food and beverage department, Boyer-Liberto worked in various roles, including restaurant hostess, restaurant and banquet server, bartender, and cocktail waitress.
On the night of Sept. 14, 2010, Boyer-Liberto was working as a cocktail waitress in the Clarion’s nightclub. That evening, after retrieving a drink for a customer, Boyer-Liberto went through the restaurant kitchen on the way back to the nightclub. After delivering the drink to her customer, she returned to her server station, where she was confronted by Trudi Clubb, a white food and beverage manager at the Clarion.
Unbeknownst to Boyer-Liberto, Clubb had been yelling at her for passing through the kitchen and was livid because she believed that Boyer-Liberto had heard but ignored her. As Boyer-Liberto was at the server station, Clubb came through the kitchen doors, loudly screaming, “Hey, girl that can’t hear” and quickly approached Boyer-Liberto. Clubb came so close that she sprayed saliva on Boyer-Liberto’s face and Boyer-Liberto could feel Clubb’s breath on her face.
Clubb’s shouting persisted, even as Boyer-Liberto left the server station to tend to her customers. Clubb loudly berated Boyer-Liberto for walking away from her, following Boyer-Liberto into the nightclub and then back to the server station. As Clubb proceeded to exit the nightclub back to the kitchen, she threatened Boyer-Liberto with words that included “[I’m] going to get [you]” and “[I’m] going to make [you] sorry,” and concluded by calling Boyer-Liberto either a “damn porch monkey” or a “dang porch monkey.”
The following day, Boyer-Liberto went to the Clarion’s management office to report Clubb’s conduct to Food and Beverage Director Richard Heubeck. Boyer-Liberto had just begun talking to Heubeck when Clubb came into the office, interrupted and said, “I need to speak to you, little girl,” prompting Boyer-Liberto to follow Clubb out of the office. The two then sat at a nearby table and Clubb reprimanded Boyer-Liberto again for passing through the kitchen the prior night. As the two women rose from the table, Clubb threatened Boyer-Liberto, stating, “I’m gonna get you. I’m gonna go to [hotel owner] Dr. Berger,” and then loudly again called Boyer-Liberto a “porch monkey.”
The following day, Boyer-Liberto arranged to speak with Human Resources Director Nancy Berghauer by telephone. During the phone call, Boyer-Liberto complained that she had been racially harassed by Clubb. Berghauer prepared a summary of her discussion with Boyer-Liberto, which included Boyer-Liberto’s allegation that Clubb called her a “porch monkey,” and provided the summary to hotel owner Dr. Leonard Berger and general manager Mark Elman. Elman met with Boyer-Liberto to further discuss her complaint. Although Clubb denied using the term “porch monkey,” Heubeck met with Clubb and issued her a written notice advising Clubb of the conduct expected of her and cautioned her regarding the use of certain language and phrases.
According to Berger, Boyer-Liberto’s racial harassment complaint prompted him to go to Heubeck and inquire for the first time ever about Boyer-Liberto’s performance. Pursuant to Berger’s account, Heubeck gave a negative evaluation of Boyer-Liberto and attributed the variety of her job assignments to her failure in every role she tried. After further consulting Elman and Berghauer, Berger decided to fire Boyer-Liberto immediately. At the beginning of her scheduled shift on Sept. 21, just four days after her harassment complaint, Boyer-Liberto was terminated.
She filed an action for racial discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act and 42 U.S.C. §1981 against her former employer and Berger. The defendants filed for summary judgment, and the U.S. District Court for the District of Maryland granted their motion. On appeal, the 4th U.S. Circuit Court of Appeals affirmed. But the appeals court granted rehearing by the full court, which vacated and remanded the matter for further proceedings. The appeals court found that a genuine issue of material fact existed for a jury as to whether a supervisor’s use of a racial slur on two occasions was severe conduct. The court also ruled that an employee is protected from retaliation for opposing an isolated incident of harassment if she or he reasonably believes a hostile work environment is in progress.
The court found that an isolated incident of harassment can amount to discriminatory changes in the terms and conditions of one’s employment if that incident is “extremely serious.” In measuring the severity of the harassing conduct, the court held that the status of the harasser may be a significant factor and that a supervisor’s use of a racial epithet could impact the work environment severely.
The appeals court also found that when evaluating whether an employee engaged in a protected activity sufficient to state a claim of retaliation based upon reporting an isolated incident of harassment, the focus should be on the severity of the harassment to determine if the employee had a reasonable belief that the treatment was unlawful. The court noted that there is no requirement that an employee show additional evidence that a hostile environment is likely to occur if the isolated incident upon which the employee relies is physically threatening or humiliating.
Boyer-Liberto v. Fontainebleau Corp., 4th Cir., No. 13-1473 (May 7, 2015).
Professional Pointer: The court reiterated the rule of law that an employee must make an internal complaint and take advantage of any preventive or corrective policies the employer has and report misconduct, thus reinforcing the importance of having updated policies, procedures and training. While training, knowledge and prevention related to harassment and discrimination is important for all employees, it is especially important for supervisory employees, as it is their conduct that not only can lead to vicarious liability for the employer but also can affect whether a court will find that an employee has made out the prima-facie elements of a claim, permitting a matter to proceed to trial.
Anthony J. Vinhal is an attorney with Carmagnola & Ritardi LLC, the Worklaw® Network member firm in Morristown, N.J.
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