Out with the old and in with the new. In a decision issued last week, the 4th Circuit Court of Appeals held that a single incident of harassment was sufficient to move a harassment claim forward. This decision is certainly a win for employee-plaintiffs, and marks a stark departure from the state of the law in the Fourth Circuit for the past decade.
In Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (May 7, 2015), the plaintiff alleged that another employee called her a “porch monkey” on two occasions within 24 hours. The Fourth Circuit (which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina), found that its prior view on harassment was incompatible with Supreme Court precedent to the extent it required more than a single incident of harassment to support a hostile work environment claim. Citing Supreme Court case law, the court found that an “extremely serious” single allegation, such as the allegation here, could satisfy the requirement that harassment be sufficiently severe and pervasive. The Fourth Circuit also found that an employee fired after complaining about a single incident of alleged harassment can claim retaliation if the harassment was physically threatening or humiliating.
The decision should come as a warning sign to employers, and certainly lends credence to the argument by some commentators that the Fourth Circuit’s ideology has become more “worker-friendly” in the recent past. Whether the decision will have any practical effect on the number of cases surviving summary judgment remains to be seen, but we’ll continue to monitor and report back on any developments.