How Many Racial Insults Are Needed to Demonstrate a Hostile Work Environment?

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.