One Instance of Racial Harassment Can Be Enough

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July 21, 2015

Harassment and discrimination in the workplace continue to be evolving areas of law.  In most U.S. jurisdictions, the rules seem to be fairly well-established as fair and balanced for both employer and employee.  However, when the right case comes along, the balance can shift, and new standards can be adopted that favor one party over the other.  The following case provides another example of how the courts have tipped the balance in favor of employees. 
On May 7, 2015, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in Boyer-Liberto v. Fontainebleau Corp. that made three modifications to how the courts should analyze Title VII racial harassment and hostile workplace retaliation claims. 

First, the court overturned the standard that a single instance of the use of a racial slur could not be severe or pervasive enough for a jury to find harassment.  Now, so long as the instance is physically threatening or humiliating, a single utterance of a racial slur could be considered severe enough to create a hostile work environment.

Second, the court expanded the class of harassing supervisors to include any co-worker that has a position of influence and various other versions of a quasi-supervisor, which could include team leaders, group leaders, or even assistant-assistant managers. 

Third, the court found, specific to hostile workplace retaliation claims, a worker’s complaint about a single instance could be a legally protected activity even if the jury doesn’t find that the workplace conduct reaches the level of “severe” that is otherwise required for a valid harassment claim.  Now, to have cause to file a complaint over protected activity, the employee only needs to have a reasonable belief based on a single instance that an action was undertaken to create a hostile work environment.

How does this affect employers in Wisconsin?
Technically, nothing changes in Wisconsin…yet.  Decisions in the 4th Circuit do not create binding law in the other circuits, nor in state courts.  However, if new cases challenge these or similar issues, the reasoning of the 4th Circuit is persuasive and may be relied upon to refine the laws governing this type of activity.  On the issues mentioned above, the State of Wisconsin has not strayed from the guidance provided by Title VII and the U.S. Supreme Court.  Here is a brief reminder of the current law in Wisconsin as it relates to the three issues noted above:
On the first issue of whether a single instance of racial discrimination is enough, the U.S. Supreme Court has held that an isolated incident of harassment, if extremely serious, can create a hostile work environment.  Wisconsin state courts have not ruled to the contrary.
On the second issue of who is considered a supervisor, the U.S. Supreme Court says a supervisor must have the power to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  Consistent with that, the Wisconsin Fair Employment Act contemplates liability for supervisory employees only.  The definition of supervisory has been interpreted by the courts to mean any other employee who has the authority to hire, transfer, discipline or discharge the plaintiff.  To the extent that the other employee supervises anything, if they oversee activities the plaintiff is to do, not the plaintiff herself, such a person is a coworker rather than a ‘supervisor’ within the meaning of the Fair Employment Act.  
On the third issue of whether an employee’s claim of retaliation will be protected even if the conduct involved does not rise to the level of being severe enough to be determined by a jury to present a valid harassment claim, the courts are likely to find that if the worker has a reasonable belief that he or she was engaged in a protected activity (such as filing a complaint with a supervisor for unlawful conduct) and can show a causal connection to that activity and an adverse employment action (such as a demotion, decrease in pay, or termination), he or she would have a valid claim.
What should employers do right now?
As this case shows us, just one severe comment or action could lead to a viable hostile work environment or retaliation lawsuit.  It is a good idea to make sure you are up to date on all of your workplace harassment training, especially for anyone in a management or leadership role.  As an employer, you should be extremely mindful of what you and your supervising employees say to employees.  It is a good idea to ask the following three questions:

Do you have policies relating to harassment and discrimination?

When was the last time you made sure your policies on anti-discrimination and anti‑harassment are compliant with the current law?

When was the last time you held training for your managers, supervisors, and other leaders within your organization relating to proper handling of reports of harassment and discrimination?

If you are not sure about the answer to any of these questions, it may be an indication that it is time to revisit what you can do to protect your company.
Private employers who would like to incorporate best practices for avoidance of harassment in the workplace should contact any of the attorneys within the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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