Should employers be trembling in litigious fear after the Boyer-Liberto v. Fontainebleau decision out of the U.S. Court of Appeals for the Fourth Circuit? Robin Shea of Constangy, Brooks, Smith & Prophete examines the ruling, in which the majority of the court held that “one or two uses of a racial slur could be ‘severe’ enough for a harassment issue to go to a jury.” Additionally, the circuit said a harasser could equal a supervisor even when he or she was not in a position of influence, and an employee’s complaint about workplace behavior can be “legally protected.”
“This decision is not great for employers, but I don’t think it’s the end of the world,” says Shea. She notes that pre-Boyer-Liberto, employers could raise the defenses that they took reasonable steps to prevent the harassment, they reacted appropriately to the complaint and the behavior didn’t constitute harassment because it only happened a few times. Now, post-Boyer-Liberto, the first two defenses are still available to the employer, just not the third. She says the same holds true for retaliation claims.
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