• Employers Receive Greater Protection under 4th Circuit: Two Free Slurs Rule
  • September 25, 2014
  • Law Firm: Wong Fleming - Princeton Office
  • What defines a hostile work environment has been and remains to be a formidable line neither employer nor employee wishes to touch let alone cross —yet it inevitably occurs. Most of us are now familiar with the “one free grope” rule that came about from the 5th U.S. Circuit Court ruling in Paul v. Northrop Grumman Ship Systems, however more recently the 4th U.S. Circuit Court of Appeals has appeared to follow suit in what is now coined as the “two-free-slurs” rule.

    Plaintiff in Boyer-Liberto v. Fontainebleu Corp. claimed to have been subjected to a racially hostile work environment when allegedly referred to as a “porch monkey” by a coworker. Plaintiff, self-identified as African American, alleged she was subjected to this racial slur not once but twice over the course of two days.

    Though the 4th Circuit Court of Appeals did not deny that the term “porch monkey” was racially derogatory and highly offensive in nature, the Court did not find it sufficient in demonstrating a hostile work environment.

    Rather the Court determined, “a single racist statement [is] a far cry from alleging a [hostile work] environment of crude and racist conditions so severe or pervasive... [And] “a coworker’s use of a [porch monkey] twice in a period of two days...as a matter of law, [is not] so severe or pervasive as to change the terms and conditions of [a black plaintiff’s] employment so as to be legally discriminatory.”

    It is important to note, that this does not apply to many states. States such as New Jersey, for example, have ruled that a single slur creates a hostile work environment. Similarly, the federal appeals court in D.C. determined that a single use of the “N-word” was enough to create a hostile work environment because it was a racial epithet that is “deeply offensive.” Clearly, there is some dissension amongst various states and circuits as to what and how many times discriminatory practices take place constitutes a hostile work environment.

    Despite the more lenient interpretation of a hostile work environment by the 4th Circuit Court of Appeals, it is important to understand that it does not prevent a lawsuit from coming forth altogether. Any type of questionable work related interaction can lead to lawsuits that require your resources that may otherwise be completely avoidable.

    In other words, the best policy is to promote a work environment that does not condone nor tolerate this type of behavior, for your sake and the sake of your employees, whether it happens once or twice.