The Virginia Business Litigation Blog
Virginia employers take note: even one racial slur (or sexist comment) by one employee to another can subject you to legal liability under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. ยง 2000e-3(a).
Title VII protects employees against discrimination in the workplace if the discriminatory conduct is based on gender, race, color, disability, religion, or national origin. Harassment is unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is not harassment if your supervisor is mean or rude to you–unless said conduct is based on one of aforementioned discriminatory bases.
Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Without condoning this type of behavior, the United States Supreme Court recognized that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, (1998). In other words, one remark or slur, has not been enough to subject an employer to liability.
However, the Fourth Circuit Court of Appeals, which has jurisdiction over Virginia, Maryland, North Carolina, South Carolina, and West Virginia, recently held otherwise. In Boyer-Liberto v. Fountainebleu Corp., the African-American plaintiff employee was working as a cocktail waitress at the Clarion Resort Fountainbleu Hotel in Ocean City, Maryland. On May 7, the court held that the white restaurant manager’s two severely offensive racial slurs—calling the black plaintiff employee a “porch monkey”– in one work day may indeed create a hostile work environment. The employer made matters worse by terminating the employee after she complained about the manager’s conduct. The Court decried both behaviors: the racial harassment and retaliation. The Court determined that 1) an isolated incident of harassment can result in a hostile work environment if extremely serious; and 2) an employee is protected from retaliation when she reports an isolated incident of harassment that is 
physically threatening or humiliating even if the lone incident does not create a hostile work environment.
The takeaway for employees here? Report an incident of racial or sexual harassment early, so that your employers can stop the harassment. If you are terminated for doing so, file a Charge of Discrimination with the Equal Employment Commission for racial (or sexual) harassment and retaliation.
For employers? First, train your managers and supervisors sufficiently and accurately so they understand what conduct and language is unacceptable in the workplace. If you don’t know the civil rights laws, hire a professional to help. Second, when you receive a complaint of harassment, investigate the complaint and stop the harassment before it rises to the level of a hostile environment. Do not ever terminate an employee in retaliation for reporting a claim of harassment based on race or gender. Failure to heed this advice in the Fourth Circuit could cost you.
By: Amy Epstein Gluck, Guest Blogger