Just how often do you have to be subject to racial epithets before it is
considered a hostile work environment due to racial discrimination? According to one
court, being insulted on two successive days was not enough.
Reya C. Boyer-Liberto began working at the Fontainbleau Hotel in Ocean
City, Maryland on August 4, 2010, as a morning hostess in one of the hotel's
restaurants. She had difficulty keeping pace with the job. Because the
employee had expressed interest in other jobs in the hotel, she was allowed
to work in other departments, engaging in serving and bartending, as well
as working banquets. According to the hotel, she struggled in each of
these jobs. She allegedly behaved unprofessionally, clashed with other
employees, disregarded hotel policy, and responded poorly to criticism.
She was terminated on September 21, 2010.
During her employment, the Boyer-Liberto interacted with a longtime employee
of the hotel who was also a friend of the owner. While the coworker's
role was unclear, Boyer-Liberto testified that she was told that the coworker
was not a manager or a supervisor. Just over a month after the Boyer-Liberto
was hired, a customer ordered a drink that the bartender of the main bar
refused to make because it was too time-consuming to make, so Boyer-Liberto
went through the kitchen to order the drink at the "pub bar."
While she was passing through the kitchen, the coworker told her not to
use the kitchen as a shortcut. When the coworker finally got Boyer-Liberto's
attention, she had heated words for the employee and concluded the conversation
by calling her a "porch monkey".
Boyer-Liberto went to the food and beverage director's office the next
day to complain about the coworker's conduct. In response, the coworker
came to the director's office and scolded Boyer-Liberto for "abandoning
her station" the previous day. As this meeting broke up, the coworker
again called the Boyer-Liberto a "porch monkey," and she reported
the coworker's conduct to HR. The coworker was issued a written warning.
Meanwhile, management discussed Boyer-Liberto's performance problems,
as well as her conflict with the coworker. Ultimately, the hotel decided
to terminate her employment.
Boyer-Liberto filed a charge of discrimination with the EEOC alleging discrimination
based on her race and retaliation for engaging in protected activity.
In her complaint, she asserted claims of racial discrimination and retaliation
in violation of Title VII. Using the term "porch monkey" was
particularly severe and humiliating, she claimed and that, because the
duration of her employment was short, the coworker's two uses of the
term were relatively frequent and therefore cause a hostile work environment.
The district court ruled against her, and she appealed. The appeals court
agreed with the district court and threw out the case. The Fourth Circuit
agreed with the employee that the "porch monkey" term was indeed
racially derogatory and highly offensive. However, it concluded that a
coworker's use of that term twice in a period of two days in discussions
about a single incident was not, as a matter of law, so severe or pervasive
as to change the terms and conditions of the employee's employment
and be legally discriminatory.
A hostile work environment exists when "the workplace is permeated
with discriminatory intimidation, ridicule, and insult that are sufficiently
severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment." Here, Boyer-Liberto had
not presented evidence for a jury to find that environment. Particularly
important to the court was the fact that the employee pointed to only
two conversations in which she was called a "porch monkey,"
both arising from a single incident. While the coworker's statements
to the employee were racially derogatory and highly offensive, they were
singular and isolated, and the employee was unable to point to any other
indicators in the record of racist or hostile statements made to her.
So, at least according to this court, a couple of isolated racial insults
are insufficient to prove a hostile work environment due to racial discrimination.
It probably didn't help that there were performance problems involved.
If you are in a racially discriminatory hostile work environment, be sure
to document each incident, as the conduct must be more than just isolated
remarks, but rather should be enough to permeate the workplace.
If you feel you have been subject to racial discrimination at work in
New York, call the attorneys at Schwartz and Perry LLP so that your rights
can be enforced.