An employee complains of several inappropriate and insulting comments in the office. A few days later, the company decides to fire the employee for poor performance. Can the employee sue?

Yes, under these facts the employee can likely sue for retaliation based on a recent decision by the 4^th Circuit U.S. Court of Appeals, the federal circuit which covers Maryland, Virginia, West Virginia, and North and South Carolina.  In the decision, the en banc court reversed an earlier panel decision and prior case law stating that “isolated comments,” without other threatening or offensive conduct, cannot create a hostile work environment and thus cannot support a retaliation claim.  That decision is Boyer-Liberto v. Fontainebleau Corp.

A hostile work environment is created by unwelcome workplace conduct offensive based on race, national origin, gender, disability, age or religion that is so severe or pervasive to alter the terms and conditions of employment.  In the past, an employee could not prove that a hostile work environment exists based on only a few “isolated comments” in the workplace.

In the Boyer-Liberto case, an African American restaurant hostess complained to her employer that a manager had called her a “porch monkey” twice in a 24-hour period.   Shortly thereafter, she was fired by the hotel restaurant, and she brought a lawsuit against it claiming that it created a hostile work environment and retaliated against her for reporting the situation.

The employer sought to dismiss the lawsuit by filing a motion for summary judgment prior to trial.  The district court granted that motion based on the small number of alleged racist comments, which it said was not severe or pervasive enough to create a hostile work environment in the workplace.  The court also dismissed the retaliation claim because the employee did not complain of an actual hostile work environment or an environment reasonably perceived as hostile.

On appeal, the 4^th Circuit initially upheld the district court’s decision based on its prior rulings requiring more than a few isolated comments to create a hostile work environment.  In a rehearing before the entire 4^th Circuit, however, that court reversed the panel’s decision and found that an employee who reports isolated harassing comments that are threatening or humiliating could establish a claim of retaliation for discipline that follows shortly after.

The 4^th Circuit also reversed the dismissal of the plaintiff’s hostile work environment claims, holding that a reasonable jury could find that a hostile work environment existed.  Thus the decision may change employment law significantly by allowing employees to prove a hostile work environment based on a few offensive statements.  Employers may thus have to impose workplace language codes and other policies and procedures to try to prevent workers from making any offensive comments based on race, national origin, gender, disability, age or religion. Otherwise, the company may be liable at the outset for the existence of those remarks, and the resulting harm to a complaining employee.

The above is provided for informational purposes only and should not be construed as legal advice.