“Slurring” the Lines Between Insensitivity and Hostility: Boyer-Liberto v. Fontainebleau Corp. and the Evaluation of Title VII Racial Harassment Claims

INTRODUCTIONIn 2015, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, vacated the U.S. District Court for the District of Maryland's decision to grant summary judgment in favor of Fontainebleau Corporation on hostile work environment and retaliation claims based on racial harassment.1 In Boyer-Liberto v Fontainebleau Corp., Reya C. Boyer-Liberto, an African American cocktail waitress employed by defendant Fontainebleau Corporation ("Fontainebleau"), brought a claim after experiencing an incident of racial harassment at the Clarion Resort Fontainebleau Hotel ("Clarion") where she was employed.2 Boyer-Liberto's claim of racial harassment was based on a twenty-four hour period during which she was called a "porch monkey" twice and threatened with termination of her job by Trudi Clubb, a Caucasian Food and Beverage Manager at the Clarion.3After she reported the harassment to management, Boyer-Liberto was terminated from her position at the hotel.4 Then, after exhausting her administrative remedies with the Equal Employment Opportunity Commission (EEOC), Boyer-Liberto filed a complaint in the U.S. District Court for the District of Maryland, alleging hostile work environment and retaliation pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 1981 ("section 1981"), which prohibits employment discrimination based on race.5 Following discovery, Fontainebleau filed a motion for summary judgment, which the district court granted, and Boyer-Liberto appealed.6A 2-to-1 panel decision, written by Judge Paul V. Niemeyer for the Fourth Circuit, affirmed the district court's judgment.7 The Fourth Circuit, upon granting a rehearing en banc, ultimately vacated the district court's decision, remanding for further proceedings.8 The concurring and dissenting opinion of Judge J. Harvie Wilkinson III argued that the majority's hostile work environment conclusion was without precedent but that the retaliation claim should be remanded.9 Judge Niemeyer's dissent argued that the court's conclusions were without precedent because they were based on a misinterpretation of the existing precedent.10Part I of this Comment outlines the factual and procedural history of Boyer-Liberto. Part II discusses the majority's departure from previous standards of evaluation of Title VII hostile work environment and retaliation claims. Part III advocates for a return to precedent when evaluating Title VII hostile work environment and retaliation claims in order to avoid frivolous racial harassment claims filed against employers, and to maintain the purpose of Title VII in reducing workplace segregation and racial hostility.I. BOYER-LIBERTO'S CLAIM OF RACIAL HARASSMENT IN THE WORKPLACEIn August 2010, Reya C. Boyer-Liberto began working in the Food and Beverage Department at the Clarion, an oceanfront hotel in Ocean City, Maryland.11 Boyer-Liberto had various roles, including restaurant and banquet server, bartender, and cocktail waitress.12On September 14, 2010, when Boyer-Liberto was working as a cocktail waitress in the nightclub, one of her customers ordered a "Hula Hula" drink, which the bartender in the main bar refused to fill.13 In order to please her customer, Boyer-Liberto went behind the main bar to the pub bar where she found a bartender that would make a "Hula Hula."14 Once the drink was prepared, to avoid confrontation with the main room bartender, Boyer-Liberto chose a new path back to the nightclub that took her through the restaurant kitchen.15 After going to the server station to print a guest check, Boyer-Liberto was confronted by Trudi Clubb, who, unbeknownst to Boyer-Liberto, had been yelling at Boyer-Liberto as she passed through the kitchen.16 Clubb's shouting escalated to threats, and concluded with Clubb calling Boyer-Liberto a "damn porch monkey."17Upon arriving for the dinner shift the next day, Boyer-Liberto went to Clarion's management office to report Clubb's conduct. …