Lead Opinion
Vаcated and remanded by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges MOTZ, GREGORY, SHEDD, DUNCAN, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS joined. Judge WILKINSON wrote an opinion concurring in part and dissenting in part, in which Judge AGEE joined. Judge NIEMEYER wrote a dissenting opinion.
ON REHEARING EN BANC
Reya C. Boyer-Liberto, the African-American plaintiff in these civil rights proceedings, alleges that within a single twenty-four-hour period in September 2010, while working as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland (the “Clarion”), she was twice called ■ a “porch monkey” and threatened with the loss of her job by a Caucasian restaurant manager. Soon after reporting to higher-ups at the hotel that she had been racially harassed, Liber-to was fired by the Clarion’s owner, Dr. Leonard P. Berger. This action against the Fontainebleau Corporation and Berger ensued, with Liberto asserting claims of hostile work environment and retaliation, under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court awarded summary judgment to the defendants, see Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212,
As explained below, we now vacate the judgment of the district court and remand for further proceedings on Liberto’s claims. In so doing, we underscore the Supreme Court’s pronouncement in Faragher v. City of Boca Raton,
I.
A.
The record in this matter reflects that on August 4, 2010, Liberto began working at the Clarion, an oeeanfront hotel containing guest rooms, several restaurants and bars, a nightclub, and a conference center with meeting and banquet facilities.
On the night of September 14, 2010, Liberto was working as a cocktail waitress in the Clarion’s nightclub. One of her customers ordered a “Hula Hula,” a drink that is time-consuming to prepare. The bartender in the adjacent main bar refused to fill the order, explaining to Liberto that other nightclub patrons would see the Hula Hula and want that drink, too. In an effort to please her customer and after consulting immediate supervisor Jamie Avery, Liberto went beyond the main bar to the pub bar, where she found a bartender willing to make a Hula Hula. Once the drink was prepared, Liberto wanted to avoid a confrontation with the bartender in the main bar, so she chose a new path back to the nightclub that took her through the restaurant kitchen. Liberto carried the Hula Hula briskly through the kitchen and across the nightclub to her customer’s table. She then went to a server station, which was located in the nightclub several feet from the kitchen doors, to print a guest check.
At that point, Liberto was confronted by Trudi Clubb, a white Food and Beverage Manager at the Clarion. Unbeknownst to Liberto, Clubb had been yelling at Liberto as she passed through the kitchen carrying the Hula Hula. Liberto soon learned that Clubb was livid because she believed that Liberto had heard but ignored her. As Liberto worked at the server station, Clubb came through the kitchen doors, loudly screaming, “Hey, girl that can’t hear.” J.A. 237.
Upon arriving for a dinner shift the following day, September 15, 2010, Liberto went to the Clarion’s management office to report Clubb’s conduct to Food and Beverage Director Richard Heubeck. Liberto had just begun talking to Heubeck when she was interrupted by Clubb, who came into the office and said to Liberto, “I need to speak to you, little girl.” J.A. 263. Liberto responded that she was meeting with Heubeck, but Clubb retorted, “I’m more important,” prompting Liberto to follow Clubb out of the office. Id. at 263-64. Clubb and Liberto sat at a nearby table, and Clubb reprimanded Liberto, in a raised and angry voice, for passing thrоugh the kitchen the prior night. As the two women then rose from the table and pushed in their chairs, Clubb threatened, “I’m gonna get you. I’m gonna go to [hotel owner] Dr. Berger.” Id. at 266. Her voice still loud and angry though somewhat lower than before, Clubb capped the threat by looking directly at Liberto and again calling her a “porch monkey.” Id. at 266-68.
On September 16, 2010, Liberto arranged to speak with Human Resources Director Nancy Berghauer by telephone the following day. During the September 17 phone call, Liberto complained that she had been racially harassed by Clubb. From handwritten notes, Berghauer prepared a typewritten summary of her discussion with Liberto, which included Li-berto’s allegation that Clubb called her a “porch monkey” on September 15. Ber-ghauer provided the summary on September 17 to Dr. Berger and General Manager Mark Elman, and Elman met with Liberto on September 18 to further discuss her complaint. Meanwhile, although Clubb denied ever using the term “porch monkey,” Heubeck issued her a written notice on September 18 advising that, as “a member of our Food & Beverage Management team ..., [Clubb] is expected to conduct herself as such” and “needs to be cautious the language or phrases she uses can not be perceived as racist or derogatory.” J.A. 311.
According to Dr. Berger, Liberto’s racial harassment complaint of September 17, 2010, prompted him to go to Heubeck that day and ask — for the first time ever— about Liberto’s performance. In Berger’s account, Heubeck gave a negative evaluation of Liberto and attributed her variety of job assignments to failure in every role she tried; thus, after further consulting Elman and Berghauer between September 18 and 20, Berger made the decision to fire Liberto immediately. At the beginning of her scheduled shift on September 21, Li-berto was notified that she was being discharged.
Whether Clubb had been empowered by the Clarion to fire Liberto or take other tangible employment actions against her is unclear on this record. From Liberto’s perspective during her short time as a Clarion employee, Clubb “was just Dr. Berger’s friend and she was just there to say hello and greet people as a glorified hostess.” J.A. 213. Liberto did not know
B.
On January 23, 2012, after exhausting her administrative remedies with the federal government’s Equal -Employment Opportunity Commission (the “EEOC”), Li-berto filed her complaint in the District of Maryland. The complaint' asserted four claims: one claim each of hostile work environment and retaliation pursuant , to Title VII against solely the Fontainebleau Corporation, trading as the Clarion Resort Fontainebleau Hotel; and one claim each of hostile work environment and retaliation under 42 U.S.C. § 1981 against both the Fontainebleau Corporation and Dr. Berger.
1.
Following discovery, the defendants filed a motion for summary judgment. Contesting the validity of the hostile work environment claims, the defendants focused on just one of the four elements of such a claim, contending that there had been no showing that Clubb’s conduct was severe or pervasive enough to alter Liber-to’s conditions of employment and produce an abusive work environment. See Okoli v. City of Balt.,
With respect to the retaliation claims, the defendants argued that Liberto could not establish that she undertook a protected activity by making her racial harassment complaint to the Clarion. See EEOC v. Navy Fed. Credit Union,
2.
In seeking summary judgment, the defendants substantially relied on our precedent in Jordan v. Alternative Resources Corp.,
Addressing the Title VII retaliation claim, the opinion of the panel majority related that, under Title VII, “ ‘[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter.’ ” Jordan,
The Jordan majority observed that the employment practices that may be the subject of protected opposition activity include discrimination under 42 U.S.C. § 2000e-2(a)(l) in the form of “maintaining a racially hostile work environment, i.e., a ‘workplace ... permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Jordan,
To assess the merits of Jordan’s Title VII retaliation claim, the panel majority clarified, “the question reduces to whether Jordan complained about an actual hostile work environment or, if there was not one, whether Jordan could reasonably have believed there was one.” Jordan,
Turning to the issue of Jordan’s reasonable belief, the panel majority concluded that “no objectively reasonable person could have believed that [Jordan’s workplace] was in the grips of a hostile work environment.” Jordan,
The Jordan dissent agreed with the panel majority that, to gain protection for his opposition activity, an employee may rely on a reasonable belief that Title VII is in the process of being violated by the conduct being opposed. See Jordan,
The Jordan dissent concluded that, “[b]y opposing racially charged conduct that he reasonably believes could be part and parcel of a hostile work environment, a reporting employee has opposed the impermissible whole, even absent an independent basis for believing the conduct might be repeated.” Jordan,
At bottom, the Jordan dissent recognized that the “black monkeys” comment made by Jordan’s co-worker “is the stuff of which a racially hostile work environment is made,” and thus that “it was entirely reasonable for Jordan to believe that, in reporting the ... comment to his employers, he was opposing a racially hostile work environment.” Jordan,
3.
Here, by its decision of April 5, 2013, the district court relied on Jordan and awarded summary judgment to the defendants, adopting their contentions that Clubb’s conduct was not so severe or pervasive as to create a hostile work environment or to instill a reasonable belief in Liberto, such as would protect her from retaliation, that she had been unlawfully harassed. See Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212,
Liberto timely noted her appeal, and the matter wаs reviewed by a three-judge panel of this Court. See Boyer-Liberto v. Fontainebleau Corp.,
The panel was split, however, with respect to Liberto’s retaliation claims. The opinion of the panel majority validated the district court’s summary judgment award on those claims, explaining that, “if no
The dissent distinguished the facts in this case from those in Jordan and concluded that, “[particularly in light of these significant differences, ... Liberto could have reasonably believed that Clubb’s conduct was actionable.” Boyer-Liberto,
Following issuance of the panel’s decision, Liberto sought rehearing en banc, and a majority of our judges in regular active service voted to grant Liberto’s petition. Accordingly, the panel’s decision was vacated, and today our en banc Court assesses anew the propriety of the district court’s summary judgment award to the defendants. See 4th Cir. R. 35(c).
II.
We review de novo a district court’s award of summary judgment, viewing the facts in the light most favorable to the nonmoving party. See Laber v. Harvey,
III.
A.
1.
We begin by addressing Liberto’s hostile work environment claims — an endeavor that leads us to outline pertinent legal principles, including some of those already identified above. Title VII renders it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such indi-
Element three of a hostile work environment claim requires a showing that “the environment would reasonably be perceived, and is perceived, as hostile or abusive”; the plaintiff may, but is not required to, establish that the environment is “psychologically injurious.” See Harris,
To be sure, viable hostile work environment claims often involve repeated conduct. See Nat’l R.R. Passenger Corp. v. Morgan,
The status of the harasser also is relevant to element four of a hostile work environment claim, which necessitates proof that the harassment is imputable to the employer. On the one hand, “[i]f the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.” Vance v. Ball State Univ., — U.S. -,
For purposes of the employer’s vicarious liability, the harasser qualifies as a supervisor, rather than a co-worker, “if he or she is empowered by the employer to take tangible employment actions against the victim.” Vance,
To be considered a supervisor, the employee need not have the final say as to the tangible employment action; instead, the employee’s decision may be “subject to approval by higher management.” Vance,
2.
In seeking summary judgment on Liber-to’s hostile work environment claims, the defendants’ sole contention was that there had been no showing that Clubb’s conduct was severe or pervasive enough to alter Liberto’s conditions of employment and produce an abusive work environment. Liberto’s counter-arguments included that there was a genuine dispute as to whether the harassment she suffered on September 14 and 15, 2010, was sufficiently severe. To resolve that issue today, we need not— and, in any event, on this record cannot— determine whether Clubb was actually Li-berto’s supervisor or simply her co-worker, a fact relevant to the separate question of the Clarion’s vicarious liability. Nevertheless, we are obliged to consider how Clubb portrayed her authority and what Liberto thus reasonably believed Clubb’s power to be. See Oncale,
The defendants have suggested that, because Liberto understood Clubb to be a “glorified hostess” and not a restaurant manager, see J.A. 213-14, Liberto could not have reasonably perceived that Clubb’s conduct was severe enough to create a hostile work environment. That premise ignores evidence, however, that Clubb repeatedly and effectively communicated to Liberto prior to September 14, 2010, that Clubb had Dr. Berger’s ear and could have Liberto fired. See, e.g., id. at 274 (Liber-to’s deposition testimony that Clubb “did have power that I did not have”); id. at 279 (“I felt extremely singled out and that my position was being threatened and it was very clear.”); id. (“I was told what my place was.... And [Clubb] always made it clear that Dr. Berger would listen to anything she said and wouldn’t believe me.”).
The defendants’ theory also fails to take into account Clubb’s assertion of power in the course of her harassment of Liberto. On September 14, 2010, Clubb berated Liberto’s job performance before threatening “to get [her]” and “make [her] sorry,” and then calling her a “damn porch monkey” or a “dang porch monkey.” See J.A. 252-53, 258. The following day, Clubb obstructed Liberto’s attempted report of racial harassment to Food and Beverage Director Heubeck by telling Liberto, “I need to speak to you, little girl,” and “I’m more important [than Heubeck].” Id. at 263-64. Immediately thereafter, Clubb again reprimanded Liberto, again threatened to “get [her]” and to “go to Dr. Berger,” and again called her a “porch monkey.” Id. at 266. Finally, while speaking with Liberto on September 18 about her racial harassment complaint, General Manager Elman validated Clubb’s
Properly considering that evidence, we must accept that Liberto believed — and reasonably so — that Clubb could make a discharge decision or recommendation that would be rubber-stamped by Dr. Berger. Thus, in gauging the severity of Clubb’s conduct, we deem Clubb to have been Li-berto’s supervisor. Cf. Vance,
We also grasp that the use of Clubb’s chosen slur- — “porch monkey” — is about as odious as the use of the word “nigger.” See Spriggs,
Consequently, a reasonable jury could find that Clubb’s two uses of the “porch monkey” epithet — whether viewed as a single incident or as a pair of discrete instances of harassment — were severe enough to engender a hostile work environment. Cf. Adams v. Austal, U.S.A., L.L.C.,
In thus vacating the summary judgment award on Liberto’s hostile work environ
B.
1.
Turning to Liberto’s retaliation claims, Title VII proscribes discrimination against an employee because, in relevant part, she “has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Employees engage in protected oppositional activity when, inter alia, they “complain to their superiors about suspected violations of Title VII.” Bryant v. Aiken Reg’l Med. Ctrs. Inc.,
a.
The panel majority in Jordan ruled that, where an employee has complained to his employer of an isolated incident of harassment insufficient to create a hostile work environment, the employee cannot have possessed a reasonable belief that a Title VII violation was in progress, absent evidence “that a plan was in motion to create such an environment” or “that such an environment was [otherwise] likely to occur.” See
First of all, the Jordan standard “imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment.” See Jordan,
The Jordan standard also is at odds with the hope and expectation that employees will report harassment early, before harasser is her supervisor and no tangible employment action has been taken, the victim is compelled by the El-lerth/Faragher defense to make an internal complaint, i.e., “to take advantage of any preventive or corrective opportunities provided by the employer.” See Faragher,
But rather than encourage the early reporting vital to achieving Title VII’s goal of avoiding harm, the Jordan standard deters harassment victims from speaking up by depriving them of their statutory entitlement to protection from retaliation. Such a lack of protection is no inconsequential matter, for “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns аbout bias and discrimination.” See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn.,
Put succinctly, the Jordan standard is incompatible with Crawford, as well as other Supreme Court decisions directing that Title VII’s antiretaliation provision be interpreted “to provide broad protection from retaliation.” See Burlington N. & Santa Fe Ry. Co. v. White,
Finally, we need look no further than Jordan itself to comprehend that the Jordan standard is unsuited to its purpose. In Jordan’s presence, his co-worker made a comment that, “in a single breath, ... equated African-Americans with ‘black' monkeys’ and ‘black apes,’ and implied a savage, bestial sexual predilection acutely insulting to members of the African-American community.” See Jordan,
[w]ithout question, [the comment made by Jordan’s coworker] is the stuff ofwhich a racially hostile work environment is made. On the allegations here, it was entirely reasonable for Jordan to believe that, in reporting the racially charged ‘black monkeys’ comment to his employers, he was opposing a racially hostile work environment.
Id. at 355 (citations omitted). But, by devising and applying the Jordan standard, we denied Jordan any legal recourse for his retaliatory discharge. In these circumstances, the Jordan standard plainly cannot endure.
b.
The question, then, becomes this: What is the prоper standard for determining whether an employee who reports an isolated incident of harassment has a reasonable belief that she is opposing a hostile work environment in progress? We conclude that, when assessing the reasonableness of an employee’s belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment. Cf. Clark Cnty. Sch. Dist. v. Breeden,
Accordingly, as relevant here, an employee will have a reasonable belief that a hostile work environment is occurring based on an isolated incident if that harassment is physically threatening or humiliating. This standard is consistent not only with Clark County, but also with other Supreme Court precedent, including Crawford and Burlington Northern. That is so because it protects an employee like Jordan who promptly speaks up “to attack the racist cancer in his workplace,” rather than “remainfing] silent” and “thereby allowing [discriminatory] conduct to continue unchallenged,” while “forfeiting any judicial remedy he might have.” See Jordan,
In sum, under the standard that we adopt today with guidance from the Supreme Court, an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur. The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating.
Because the defendants contested Liberto’s retaliation claims on the lone ground that she did not engage in a protected activity, our analysis is limited to whether a jury could find that Liberto reasonably believed there was a hostile work environment in progress when she reported Clubb’s use of the “porch monkey” slur. Applying the standard that we adopt today, the answer plainly is “yes.” As we recognized in analyzing Liberto’s hostile work environment claims, “porch monkey” is a racial epithet that is not just humiliating, but “degrading and humiliating in the extreme.” See Spriggs,
C.
Our good dissenting colleague has a different view of the controlling law, the relevant facts, and even what our en banc majority does and does not say. See post at 293-309 (Niemeyer, J., dissenting). With respect to the hostile work environment claims, there is disagreement over what the Supreme Court meant by this sentence from Faragher:
A recurring point in [our hostile environment] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.
See
Clearly, it is the dissent’s interpretation of Faragher — not ours — that is untenable. To illustrate, the dissent elsewhere observes that a hostile environment claim “must be ‘based on the cumulative effect of individual acts,’ ” post at 295 (quoting Morgan,
Relatedly, the dissent criticizes us for “failing] to note that the portions of Far-agher to which [we] cite[ ] were part of the Supreme Court’s much lengthier discussion — and substantively different message — describing the type of conduct that would not violate Title VII.” Post at 294. In pursuing its position, the dissent simply ignores Faragher’s use of “unless extremely serious” to designate an exception to those isolated incidents that are not unlawful on their own.
Meanwhile, the dissent repeatedly invokes Faragher’s observation, “Mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not sufficiently alter terms and conditions of employment to violate Title VII.” See Faragher,
In any event, the dissent consistently minimizes the seriousness of Clubb’s two uses of the “porch monkey” slur by deeming them to be merely offensive as a matter of law. To do so, the dissent invents a test under which harassment cannot rise to the level of humiliating unless it is “publicly humiliating,” and points out that “it appears that no one heard Clubb direct the epithet at Liberto on either occasion.” See post at 302. The dissent also flouts our mandate to view the facts in the light most favorable to Liberto, and insists that, as a fact, “Liberto thought that she was being upbraided by a co-worker, not her supervi
As for the retaliation claims, the dissent accuses our en banc majority of “gratuitously proceeding] to adopt an unprecedented standard ... that is much broader than necessary to resolve Liberto’s claim[s].” Post at 303. The dissent’s accusation rests оn the false premise that we hold as a matter of law that a hostile work environment existed. In reality, we simply conclude that a reasonable jury could find for Liberto with respect to her hostile environment claims. Because it is possible that Liberto will instead come up short at trial on those claims, our retaliation analysis is essential. Indeed, we have emphasized that a jury may find that Clubb’s conduct was insufficiently serious to engender a hostile environment, but severe enough to protect Liberto from retaliation by rendering reasonable her belief that such an environment was underway.
Unfortunately, there are further instances of the dissent’s inaccurate portrayal of today’s decision. For example, although we observe herein that our standard “protects an employee like Jordan” from retaliation, the dissent asserts that we nowhere “indicate that the plaintiff in Jordan had a reasonable belief that a hostile work environment was taking shape at the time he reported his co-worker’s racist comment to his supervisors.” See post at 306. So, for the sake of clarity (though too late to benefit Jordan himself), we state in plain terms that a jury applying our standard could have found that Jordan reasonably believed he was opposing a hostile environment in progress. That is because the “black monkeys” comment uttered to Jordan — like the “porch monkey” slurs aimed at Liberto — could readily be deemed physically threatening or humiliating.
We are entirely unswayed by the dissent’s warning that our standard “will generate widespread litigation over the many offensive workplace comments made everyday that employees find to be humiliating.” See post at 304. Our standard is implicated solely when an employee suffers
Finally, we are perplexed and dismayed by the dissent’s assertions that, on the one hand, “Liberto had every right to be offended by Clubb’s use of a racial epithet and acted reasonably and responsibly in reporting the incident,” see post at 305, and that, on the other hand, Liberto spoke up too soon and thereby deprived herself of protection from retaliation. As the dissent would have it, although reporting Clubb’s slur was a sensible thing to do, Liberto should have waited for additional harassment to occur — but not so much harassment that the Clarion could avoid vicarious liability because of a lack of timely notice. Concomitantly, the dissent contends that our decision “manifests a fundamental distrust of employers, assuming that, once a humiliating epithet is uttered, the development of a hostile work environment is a fait accompli — in other words, that employers are powerless or unwilling to prevent a descent into pervasive hostility.” Id. at 308.
Contrary to the dissent, we seek to promote the hope and expectation — ingrained in our civil rights laws and the Supreme Court decisions interpreting them — that employees will report harassment early, so that their employers can stop it before it rises to the level of a hostile environment. Employers are powerless in that regard only if they are unaware that harassment is occurring. But employees will understandably be wary of reporting abuse for fear of retribution. Under today’s decision, employees who reasonably perceive an incident to be physically threatening or humiliating do not have to wait for further harassment before they can seek help from their employers without exposing themselves to retaliation.
IV.
Pursuant to the foregoing, we vacate the judgment of the district court and remand for such other and further proceedings as may be appropriate.
VACATED AND REMANDED
Notes
. For purposes of our de novo assessment of the district court’s summary judgment award, we view the facts in the light most favorable to Liberto, as the nonmoving party. See Laber v. Harvey,
. Citations herein to "J.A. -” refer to the contents of the Joint Appendix filed by the parties in this appeal.
. The district court’s grounds for awarding summary judgment — the lack of severe or pervasive conduct (element three of the hostile work environment claims) and a protected activity (element one of the retaliation claims) — were the sole grounds that had .been propounded by the defendants. See supra Part I.B.l. Regardless, the сourt acknowledged the balance of the elements of Liberto’s claims and accepted that they had been satisfied. With respect to the hostile work environment claims, that meant Liberto had shown unwelcome conduct (element one), based on her race (element two), which, "[g]iven Clubb’s position in Clarion’s management structure,” was imputable to the employer (element four). See Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212,
. We do not suggest that a jury should be limited to assessing whether Clubb’s two uses of the "porch monkey” slur, without more, created a hostile work environment. A jury also would be-entitled to consider other evidence potentially indicative of severe or pervasive harassment, including Clubb's treatment of Liberto throughout her short tenure at the Clarion; Clubb's shouting, spitting, and stalking on the night of September 14, 2010; and Clubb’s use of the term "little girl” to refer to Liberto on September 15. See, e.g., Conner,
. We observe that, although the elements of prima facie Title VII and § 1981 retaliation claims are identical, the causation standard for a Title VII claim may differ from that for a
. Notably, in its brief as amicus curiae supporting Liberto, the EEOC urges us to adopt a
. Notably, although the defendants themselves failed to argue in the district court that Clubb was not actually Liberto's supervisor, the dissent wanders into that issue and declares it "highly doubtful that Clubb ... would qualify as Liberto's supervisor.” See post at 300 (describing Clubb as "an employee whose only influence comes from having the ear of the company’s owner because of their personal friendship”). The dissent's characterization of Clubb is contradicted by portions of the record, including the September 18, 2010 email in which Elman, the Clarion's General Manager, recounted responding to Liberto’s racial harassment complaint by advising her that she and Clubb "need[ed] to learn to work together on a professional level and that [Clubb] was [Liberto’s] boss.” J.A. 324. Rather than grappling with that important evidence from the Clarion's own General Manager, the dissent chastises us for considering what it glibly terms "Elman's apparent understanding of Clubb’s relationship to Li-berto.” See post at 301 n. *.
Meanwhile, two other of our good colleagues deem Clubb to have been Liberto’s mere co-worker and thereby conclude that the Clarion cannot be held vicariously liable for Clubb’s harassment of Liberto. See post at 289-90 (Wilkinson, L, concurring in part and dissenting in part, joined by Agee, L). Those colleagues not only disregard evidence that Clubb was Liberto’s supervisor, but also urge affirmance of the summary judgment award with respect to the hostile environment claims on a ground that the defendants failed to raise or preserve in the district court.
. Two of our colleagues issue dire warnings that today’s decision may cause "employers [to] become speech police,” "employees [to be] estranged from one another,” and "companies [to] become private sector analogues of the surveillance state.” See post at 289 (Wilkinson, J., concurring in part and dissenting in part, joined by Agee, J.). We cannot agree, however, that by simply protecting an employee who, for example, reports a race-based comment that she reasonably believes to be physiсally threatening or humiliating, we might somehow silence or segregate the workforce.
Concurrence Opinion
with whom AGEE, Circuit Judge, joins, concurring in part and dissenting in part:
The remarks alleged in this Title VTI action are ones that Americans of every race and all walks of life would find so wounding that the word offensive does not begin to describe them. It is incidents such as these, small as they may appear,
The good done by the civil rights laws has been enormous and one aim of those laws, as I understand it, is to make the workplace an environment where Americans of every race, religion, sex, or national origin would actually want to work. 42 U.S.C. § 2000e-2 and 2000e-3.
To say that a good workplace environment is poisoned by the kind of remarks alleged here is an understatement. Who would wish to get up and come to work each morning fearful of encountering this sort of slur during the course of the working day?
There is a countervailing danger at play in these cases, however, namely that we not imbue the workplace with such stringent hostile ' work environment requirements that employers become speech police, that employees are estranged from one another, and that companies become private sector analogues of the surveillance state.
Where and how to strike the balance? In this case I would decline to hold the employer vicariously liable on the merits of the hostile work environment claim, but I would allow Boyer-Liberto’s retaliation claim to proceed. In fact, were the truth of her complaint ascertained by the employer, the “retaliation” should have taken the form of Clubb’s dismissal and not Boyer-Liberto’s.
I.
As to the merits of the hostile work environment claim, I would affirm the judgment of the district court on the grounds that any other result would stretch the notion of vicarious employer liability past the breaking point. There may be an understandable temptation to land hard on this employer, but there are dangers down the road. Holding employers liable for remarks made by one of their employees where the majority points to no prior notice to the employer and no prior employer awareness of Clubb’s racist tendencies is all too open-ended. To be sure, an employer is “directly liable” for a coworker’s unlawful harassment if “the employer was negligent with respect to the offensive behavior.” Vance v. Ball State Univ., — U.S. -,
Whatever hazy ground Clubb may occupy between co-worker and supervisor, the hazards of imposing employer liability for remarks made by mid-level workers in workforces that might number in the hundreds or even thousands pushes imputed liability well beyond the more cabined circumstances of physical injury and actual adverse employment actions such as failures to promote or discharge. Burlington N. & Santa Fe Ry. Co. v. White,
Having liability hinge upon utterances, of which companies have no prior awareness and which no victim has yet reported to them, poses more than the threat of open-ended liability. Because liability hinges on unanticipated utterances, it will tend to drive employers as a protective measure into the role of censors of all speech that even conceivably could give offense. Faragher v. City of Boca Raton,
II.
As to the Title VII retaliation claim, an employee must show that her belief that a hostile work environment exists or is coming into existence is objectively reasonable. See Clark Cnty. Sch. Dish v. Breeden,
Under the circumstances presented here, Liberto’s belief that a hostile work environment existed or was coming into existence was objectively reasonable. The words alleged to have been spoken by Clubb were abhorrent. Moreover, Clubb uttered the epithet on separate occasions and directed it personally at Liberto. And the entire course of conduct surrounding the offensive remarks was abusive. This conduct on the part of Clubb was enough to bring Boyer-Liberto under the protection of the anti-retaliation provision of Title VII when she reported it. An employee is not an expert in hostile work environment law. Any reasonable person must feel free to report this sort of vilification without being subject to retaliatory actions. An employee must feel safe and secure in bringing an incident of this nature to the attention of management.
Any decent management, moreover, would seemingly wish to know of such an occurrence under its roof. Employers must have complaint procedures for employees to utilize at an early stage-before harassing environments intensify and spread. See Faragher v. City of Boca Raton,
But here, too, there is a balance to be struck. The annual number of Title VII retaliation charges filed with the EEOC has nearly doubled since the late 1990s. Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -,
The dangers of allowing the objective standard to slip, however, go far beyond the financial and reputational costs to companies. Two severe, if subtle, side effects
A.
If courts lessen their insistence on an objectively reasonable belief in a hostile environment and permit the reporting of all manner of perceived slights to warrant Title VII protection, we become party to the creation of the workplace as a zone where First Amendment values have ceased to be observed. In the context of a hostile work environment claim, it is “crucial” to use an objectively reasonable person standard “to ensure that courts and juries do not mistake ordinary socializing in the workplace” for actionable discrimination. Oncale v. Sundowner Offshore Servs., Inc.,
People will — and should — discuss controversial matters at work. Some of those subjects may well pertain to race and gender. Disagreement on these and other matters may be heated and robust, but it should not on that account be reportable. People may also say offensive things in the workplace. Distasteful, even offensive, speech is unfortunate but it is often a “necessary side effect[] of the broader enduring values” that the First Amendment protects. Cohen v. California,
The remarks alleged here reached the point of abusiveness accompanied by threatening and intimidating body language. Clubb approached so closely that Boyer-Liberto “could feel her breath” and the shouting caused Clubb to “spit on [her] face.” J.A. 241.
Actions are one thing. The greater danger lies in predicating liability on remarks. Not here, because Clubb’s language, to say the very least, played “no essential' part [in] any exposition of ideas.” Chaplinksy v. New Hampshire,
Anti-discrimination initiatives need not be at war with free speech. The values protected by the Fourteenth Amendment need not be inconsistent with those safeguarded by the First. Good things happen when people, in this case company employees, talk things out among themselves.
Workplaces in their' own way are our town squares. John talking to Kathy may prove in the end more fruitful than John running to a higher authority to have Kathy’s point-of-view condemned. An objective test, not a subjective standard geared to the most heightened sensibilities, best preserves the balance between free speech and anti-discrimination law. The fact that some incidents, as here, are plainly beyond the pale does not mean we surrender hope in other instances of workers reaching humane understandings in discussions with themselves. Turning someone in as a course of first resort or on insubstantial grounds may perpetuate resentment and bring the prospect of employee dialogue to a premature end.
The law of hostile environments is not anchored in any specific statutory provision. Rather, it was derived from Title VII’s general prohibition of discrimination, Meritor Sav. Bank, FSB v. Vinson,
B.
The objects of civil rights laws are to eliminate discrimination, bring Americans together, and break down barriers. This purpose remains crucial, as Congress has repeatedly attested. And yet our schools are resegregating. Our neighborhoods in all too many instances are very far apart. The workplace may be where racial interactions are most frequent, and it will be sad if law pushes this last remaining venue into the more separatist habits that elsewhere too frequently prevail.
Title YII guards against this. Title VII will be counterproductive, however, if it countenances workplaces over-reliant on
The majority surely agrees. Yet by focusing on sick “bigots” who “belittle racial minorities,” Maj. Op. at 282 (quoting Jordan v. Alt. Res. Corp.,
Title VII must not contribute an added element of inhibition when we communicate with those of another sex or race. And yet I fear that is precisely what will happen if the objectively reasonable standard is diluted in favor of retaliation protection for any report, however marginal, trivial, or unsubstantiated. The Supreme Court has made clear that Title VII’s “prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace.” Oncale,
III.
The search for balance is important in law, lest the aims of one of America’s greatest Acts be compromised by a needlessly censored and suspicious workplace. I believe the majority is right in allowing plaintiffs retaliation claim to proceed, but wrong in not affirming the district court on the merits of the Title VII claim. More than that, I regret that my friends in the majority did not do more to recognize that this is an equation with two sides, an area with more than one dimension. The harmony of balance is nowhere to be found.
Dissenting Opinion
dissenting:
The majority holds that an employee’s use of the term “porch monkey” twice in a 24-hour period, when talking to a fellow employee about a single workplace incident, transformed the workplace into a racially hostile environment and thereby effected a discriminatory change in the terms and conditions of the offended employee’s employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. It holds further that the offended employee could therefore have had a reasonable belief “that a hostile work environment [was] in progress,” ante, at 284 (emphasis added), such that her opposition to the incident justified her retaliation claim against her employer. It reaches these unprecedented conclusions by relying on selected and distilled snippets from Faragher v. City of Boca Raton,
Faragher, however, does not support the majority’s reading of it, and the majority’s conclusions are otherwise without precedent. First, in the very quotation relied on by the majority, the Faragher Court noted that “isolated incidents” — using the plural — might, if “extremely serious,” satisfy the severity requirement for racial harassment.
Second, and more importantly, the majority fails to note that the portions of Faragher to which it cites were part of the Supreme Court’s much lengthier discussion — and substantively different message-describing the type of conduct that would not violate Title VII. In that discussion, the Court drew on several opinions from the courts of appeals and noted, for instance, that the “ ‘mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee’ would not sufficiently alter terms and conditions of employment to violate Title VII.” Faragher,
So, in Harris [v. Forklift Systems, Inc.,510 U.S. 17 ,114 S.Ct. 367 ,126 L.Ed.2d 295 (1993)], we explained that in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. We directed courts to determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or amere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Most recently, we explained that Title VII' does not prohibit genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. A recurring point in these opinions is that simple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. ,
Id. at 787-88 (emphasis, added) (citations and internal quotation marks omitted).
Without the abridged Faragher snippets, which fail to capture that case’s larger message, the majority is left with virtually no support for its holdings and certainly none from the language of Title VII or any Supreme Court decision construing it. Indeed, the Supreme Court has steadfastly maintained that, to be actionable under Title VII, conduct must be so “severe or pervasive” as “to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor,
To be absolutely clear, this case does not present the question of whether an employee should be allowed to call a fellow employee a “porch monkey.” Such a racially derogatory and highly offensive term does not belong in the workplace, and I condemn it. Nor does this case present the question of whether an employee, justifiably offended by being called a “porch monkey,” should report such an incident to management. Rather, the issues here are substantially narrower.
Framed by principles of well-established law, the first question in this case is whether a reasonable jury could find that an employee’s use of the term “porch monkey” twice in a 24-hour period, when talking to a fellow employee about a single incident, could objectively be considered so severe as to transform the workplace into a racially hostile environment, thereby effecting a discriminatory change in the terms and conditions of her employment. And if we were to conclude that a reasonable jury would be unable to make such a finding on the summary judgment record in this case, then the next question would be whether a reasonable jury could find that the offended employee engaged in protected activity when she reported the conduct because she reasonably believed that her employer had committed or was in the process of committing an employment practice that was made unlawful by Title VII. See 42 U.S.C. § 2000e-3(a).
I respectfully submit that the pertinent law, when applied to the facts in the record, requires a negative response to both questions. I would therefore affirm the district court’s similar conclusions.
I
Reya Boyer-Liberto, an Afriсan-American woman, began working at the Clarion Resort Fontainebleau Hotel (the “Clarion”) in Ocean City, Maryland, on August 4, 2010. The Clarion is a typical oceanfront hotel, with several restaurants, bars, a nightclub, and banquet facilities, and it typically employs about 75 people in its Food and Beverage Department. Liberto started as a morning hostess in the hotel’s main restaurant, but she proceeded to work in many of the hotel’s other Food and Beverage positions, including serving, bartending, and working banquets. According to Leonard Berger, the Clarion’s owner, Liberto struggled in all of the positions to which she was assigned, and he terminated her employment on September 21, 2010, because she “had failed at four jobs” and “[tjhere [were] no more places for her.”
During her employment, Liberto interacted with Trudi Clubb, a white woman, who was a longtime employee at the Clarion and a friend of Berger’s. Clubb worked part-time as an evening restaurant manager, and she described her responsibilities in that role as “getting things going for the early part of the day, seeing that the crew is well-equipped and ready to present themselves to the customers, getting the tables ready, getting the buffet ... ready, overseeing all the items that need to be done,” and generally helping out as needed. Clubb directly reported to Richard Heubeck, the Clarion’s Food and
In any event, whatever the exact nature of Clubb’s role at the Clarion, Liberto testified during her deposition that she never understood Clubb to be a supervisor or even a manager. To be sure, Liberto believed that Clubb, who had worked at the Clarion for close to 20 years and had a longstanding relationship with Berger, had power that she, a brand-new employee, did not have. But Liberto stated that she reported to Heubeck and to a manager named Jamie Avery, and she was adamant that she never thought of Clubb as her manager. Instead, her “understanding of ... Clubb was that she was basically a friend of Dr. Berger’s that was there to greet people and just to be a smiling face” — in other words, that Clubb was merely a “glorified hostess.” Indeed, Li-berto stated that she was “told by everyone” that she should just “humor” Clubb and that Avery specifically told her “not to go to [Clubb] because [Clubb] did not have the power to do voids or make decisions.” She explained that, although she listened to Clubb, she did so only to the extent that she had “to be respectful and listen to everyone [she] work[ed] with.” And while Clubb would occasionally ask Liberto or other employees to do tasks, Liberto testified that “it was not a regular routine ... [for Clubb to] instructf ]” other employees and that Clubb did not correct her work.
Liberto testified that, soon after she had started working at the Clarion, she felt as though Clubb had “singled [her] out” and had threatened to take advantage of her personal relationship with'Berger to make trouble for Liberto. But the incident central to this action occurred more than a month after Liberto had been hired.
Late on the night of September 14, Li-berto was serving drinks when a customer ordered a “Hula Hula,” a cocktail that was particularly time-consuming to make. When the bartender at the restaurant’s primary bar refused to make the drink, Liberto walked around to the Clarion’s “pub bar” to order the drink there. Once the drink was ready, Liberto passed through the kitchen on her way back to the dining room, even though that was a much longer route, so as to' avoid the primary bartender who refused to make the “Hula Hula.” As she did so, Clubb yelled out to Liberto that she was not supposed to cut through the kitchen, but Liberto did not hear Clubb. Clubb then approached Liberto as she was preparing the customer’s check, yelling at Liberto for ignoring her and calling Liberto “deaf.” Liberto said that the distance between the two was close enough that she could “feel [Clubb’s] breath” and that spittle from Clubb’s mouth was hitting her. Liberto shook her head and said “okay,” but largely went about her work, which made Clubb more agitated. As the episode concluded and Clubb was walking away, Clubb said that she was “going to make [Liberto] sorry” and called Liberto either a “damn or dang, porch monkey.”
At the beginning of her shift on September 15, Liberto went to Heubeck’s office to complain about Clubb’s conduct. During the meeting, Clubb came in and said to Liberto, “I need to speak to you, little girl.” Liberto told Clubb that she was currently speaking with Heubeck, but Clubb responded that she was “more important.” Liberto and Clubb then sat down at a table outside Heubeck’s office, and Clubb scolded Liberto for “abandoning [her] station” the previous night. As
A couple of days later, on September 17, 2010, Liberto spoke by telephone with Nancy Berghauer, the Clarion’s Human Resources Director, regarding Clubb. Berghauer made typewritten notes of the conversation and forwarded them to Berger and Elman. The next day, September 18, Elman met with Liberto to discuss the situation and to ensure that Berghauer’s notes were accurate. That same day, Heubeck met with Clubb to discuss the incident, and Clubb denied Liberto’s allegations. Heubeck nonetheless issued Clubb a written warning.
When, on September 17, Berger learned about the conflict between Clubb and Li-berto, he asked Heubeck to update him on “exactly what was going on,” and he also asked about Liberto’s job performance. Heubeck reported that Liberto had so far performed poorly in every job to which she had been assigned. The next afternoon, Berger met with Elman to review Liber-to’s work file and discovered that Liberto had failed the Clarion’s bartending test “miserably.” When Berger indicated that he thought the Clarion should terminate Liberto’s employment, Elman and Ber-ghauer indicated that doing so “could create a situation” because of Liberto’s complaint. Berger replied that “there’s not going to be any good time to let her go. The situation will be there.” After further consulting Heubeck, Berger made the final decision to terminate Liberto’s employment, and Liberto was notified of the decision on September 21. Clubb was not involved in the decision, only learning of it a week later. Berger acknowledged in his deposition that Liberto’s complaint prompted him to take a look at her record, but he asserted that his decision to fire her “had nothing to do with her complaint” and was instead based-solely on her poor performance.
Liberto filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on September 23, 2010, alleging discrimination based on her race and retaliation based on her engagement in protected activity, in violation of Title VII. The EEOC issued Liberto a Notice of Right to Sue, following which Liberto commenced this action.
In her complaint, Liberto asserted four claims for relief: two counts of racial discrimination by virtue of a hostile work environment, in violation of Title VII (Count I) and 42 U.S.C. § 1981 (Count III), and two counts of retaliation, also in violation of Title VII (Count II) and § 1981 (Count IV). Liberto filed her Title VII claims against only the Fontainebleau Corporation, trading as the Clarion Resort Fontainebleau Hotel, but named both the Fontainebleau Corporation and Berger as defendants in her § 1981 claims.
Following discovery, the defendants filed a motion for summary judgment. Taking Liberto’s deposition testimony as true, the district court held that the offensive conduct was too isolated to support Liberto’s claims for discrimination and retaliation. Accordingly, by order dated April 4, 2013, the court entered judgment in favor of the defendants. This appeal followed.
II
In holding that the district court erred by entering summary judgment for the defendants on Liberto’s hostile work environment claims, the majority extends Title VII liability beyond the statute’s textual scope and beyond what the Supreme Court has recognized in construing the statute.
This demanding standard thus requires more than “conduct that is merely offensive.” Harris,
Finally, the Court has emphasized that the impact of offensive workplace conduct on an employee’s work environment cannot be “measured in isolation.” Clark Cnty. Sch. Dist. v. Breeden,
Under these controlling principles, Clubb’s alleged use of the term “porch monkey” twice in less than 24 hours when talking about a single incident was, as a matter of law, not so severe or pervasive as to produce a racially hostile work environment that changed the terms and conditions of Liberto’s employment.
There is no suggestion by the majority that the alleged harassment was sufficiently pervasive to qualify — nor could there be. As such, this casé falls outside the heartland of hostile work environment claims, the “very náture [of which] involves repeated conduct.” Morgan,
The majority’s conclusion to the contrary rests on two distortions, one factual and one legal. First, the majority brazenly distorts the facts contained in the summary judgment record regarding Liberto’s understanding of Clubb’s role at the Clarion. The majority begins by stating that the current record does not establish “yvhether Clubb was actually Liberto’s supervisor or simply her co-worker.” Ante, at 279 (emphasis added). But nonetheless
There are, however, two significant problems with the majority’s approach. First, it is highly doubtful that Clubb, who may have wielded influence on the Clarion’s owner as a result of a personal relationship but who lacked direct authority to take tangible employment actions or even to recommend formally that such actions be taken, would qualify as Liberto’s supervisor. Indeed, the Supreme Court recently clarified what makes an employee a “supervisor” in the context of hostile work environment claims, holding that the critical consideration is whether “he or she is empowered by the employer to take tangible employment actions against the victim.” Vance,
Moreover, even setting that issue aside, the majority’s assumption that Liberto must have perceived Clubb as her supervisor flies in the face of Liberto’s own deposition testimony about her understanding of Clubb’s place in the Clarion’s hierarchy. When asked about her understanding of Clubb’s role, Liberto responded, “My understanding of Trud[i] Clubb was that she was basically a friend of Dr. Berger’s that was there to greet people and just to be a smiling face.” She added, “I was told by everyone, oh, just, you know, humor [Clubb].... [T]hat’s pretty much what everyone would say about her.” When pressed, she was adamant that she did not understand Clubb to be a manager:
Q. Isn’t it true that you were told that [Clubb] was the restaurant manager?
A. Never.
Q. Is it your — is it your testimony that you did not know Trud[i] Clubb was the restaurant manager?
A. Absolutely that is my testimony.
Q. You never knew throughout your entire employment with the Clarion that she was a manager?
A. Never. I reported to Jamie [Avery], and Jamie, as a matter of fact, told me not to go to {Clubb] because [Clubb] did not have the power to do voids or makedecisions. I had to report to Jamie or Richard [Heubebk]. And at the time [Clubb] did not hold any management cards or keys as Jamie did.
(Emphasis added). And when asked whether she “thought [she] had to listen to [Clubb],” Liberto’s response was just that she “ha[d] to be respectful and listen to everyone [she] work[ed] with.”
The majority’s conclusion that we should “deem Clubb to have been Liberto’s supervisor” for the purpose of “gauging the severity of Clubb’s conduct” simply cannot be reconciled with this testimony. To the contrary, Liberto’s understanding of Clubb as a “glorified hostess” who everyone “humor[ed]” substantially lessens the impact that Clubb’s isolated statements could have had on Liberto’s work environment. See ante, at 278 (“[A] supervisor’s use of [a racial epithet] impacts the work environment far more severely than use by coequals” (second alteration in original)) (quoting Rodgers v. Western-Southern Life Ins. Co.,
In addition to relying on a blatant mis-characterization of Liberto’s understanding of Clubb’s role at the Clarion, the majority’s conclusion that Liberto’s hostile work environment claims should reach a jury also rests on a faulty interpretation of a handful of words from the Supreme Court. Specifically, the majority places a great deal of emphasis on the Court’s observation in Faragher that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ”
But in Faragher, the Supreme Court referred to “incidents,”
The majority acknowledges that this case marks the first time that our court has concluded that a reasonable jury could find the presence of a hostile work environment based on what was, at most, two repeated statements relating to a single incident. See ante, at 280-81. What the majority does not acknowledge, however, is that today’s decision makes our court an outlier among the other courts of appeals. And instead of being straightforward about that fact, the majority attempts to bolster its conclusion with citations to the Eleventh Circuit’s decision in Adams v. Austal, U.S.A, L.L.C.,
In Adams, one of the plaintiffs alleged that his supervisor carved the slur “porch monkeys” into the aluminum of the ship on which they were working, and the Eleventh Circuit observed that that “isolated act” was “severe.”
Similarly, the harassment in Ayissi-Etoh was both more pervasive and more severe than the harassment at issue here. In that case, the plaintiff — an African-American senior financial modeler — asked his company’s Chief Audit Executive why he had not received a raise in conjunction with a recent promotion.
For the reasons given, Clubb’s alleged use of the term “porch monkey” twice in less than 24 hours when talking about a single incident was not, as a matter of law, sufficiently severe or pervasive to create a racially hostile work environment that altered the terms and conditions of Liberto’s employment. I would therefore affirm the district court’s summary judgment on Li-berto’s Title VII hostile work environment claim.
For the same reasons, I would also affirm the district court’s summary judgment on Liberto’s hostile work environment claim under 42 U.S.C. § 1981. See Spriggs v. Diamond Auto Glass,
Ill
If, as the majority holds, Clubb’s twice calling Liberto a “porch monkey” in connection with a single workplace incident was a practice made unlawful by Title VII, it would necessarily follow that Liberto also stated a retaliation claim, for such a claim arises when an employee opposes any practice made an unlawful practice by Title VII and therefore is subjected to an adverse employment action. See ante, at 281. The majority could have ended its retaliation claim analysis without saying more. But it did not. Instead, it gratuitously proceeded to adopt an unprecedented standard for retaliation claims that is much broader than necessary to resolve Liberto’s claim. In doing so, it also unnecessarily overruled part of our decision in Jordan v. Alternative Resources Corp.,
A
As to its new, broad standard for retaliation claims, the majority moves far beyond the scope of any statutory language or any Supreme Court precedent to conclude that, even when an employee opposes a single offensive incident, she has “a reasonable belief that a hostile work environment is occurring” whenever the incident is humiliating. Ante, at 284; see also ante, at 284-85. Applying that standard, the majority concludes that- because “ ‘porch monkey’ is a racial epithet that is not just humiliating, but ‘degrading and humiliating in the extreme,’ ” Liberto was necessarily opposing a hostile work environment that was “in progress” when she brought the racial
Turning to the statute, as we must, Title VII’s antiretaliation provision makes it unlawful “for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Read most naturally, this provision provides protection from retaliation to an employee who has opposed an employment practice that is actually unlawful under Title VII, including her employer’s maintenance of a racially hostile work environment. And reading § 2000e-3(a)’s language generously to give effect to its purpose, we have held that an employee also engages in protected activity when she opposes an employment practice that she reasonably believes to be unlawful, see EEOC v. Navy Fed. Credit Union,
Under the Jordan standard, when an employee’s complaint relates to another employee’s harassing conduct, we do not require the harassment to have already risen to the level actionable under Title VII in order for her opposition activity to be protected from retaliation. But when the offending conduct has not risen to the level of a practice made unlawful by Title VII, we also recognized that it would be inappropriate to “simply assume, without more, that the opposed conduct [would] continue or [would] be repeated unabated.” Jordan,
Here, the majority adopts a standard far beyond that which we recognized in Jordan and far beyond what any court of appeals has recognized. It holds that an employee’s single complaint about a single incident, regardless of whether the incident is actually unlawful under Title VII or whether the employee reasonably believes that the incident is likely to recur, can be the basis for a legitimate retaliation claim, so long as the conduct is humiliating. See ante, at 284-85. This new standard will surely generate many new questions about which offensive workplace comments are objectively humiliating and
I would conclude in this case that the district court correctly entered summary judgment for the defendants on Liberto’s retaliation claim because, as a matter of law, she did not oppose activity that Title VII protects from retaliation when she reported Clubb’s conduct to the Clarion’s Human Resources Director. In light of all the circumstances, Clubb’s use of an offensive racial epithet twice in less than 24 hours was insufficiently severe to give Li-berto an objectively reasonable belief that she was complaining about the presence of a racially hostile work environment, rather than simply about another employee’s inappropriate conduct. Certainly, Liberto could have reasonably concluded from Clubb’s demeaning statement that Clubb herself was a racist. But the fact that a single employee has revealed herself through an isolated incident to be bigoted does not translate into an objectively reasonable belief that the workplace itself has become abusive to employees because of their race. Cf. Butler v. Ala. Dep’t of Transp.,
Moreover, Clubb’s statements were, as a matter of law, too isolated to give Liberto an objectively reasonable ’belief that the offensive conduct was likely to ripen into a hostile work environment. Liberto has not identified any evidence in the record suggesting that workplace racism was afoot prior to Clubb’s statements, nor any evidence suggesting that she had reason to believe that her supervisors and eo-work-ers would tolerate such conduct or permit it to recur. Indeed, after Liberto reported the incident, the Clarion’s management promptly issued a written reprimand to Clubb, warning her to be cautious about her language.
While Liberto had every right to be offended by Clubb’s use of a racial epithet and acted reasonably and responsibly in reporting the incident to Clarion’s Human Resources Director, she lacked a reasonable belief, as required by the language of Title VII, that she was opposing her employer’s commission of “a[ ] practice made ... unlawful ... by [Title VII].” 42 U.S.C. § 2000e-3(a). For that reason, I would conclude, as a matter of law, that she did not engage in protected activity and that the district court therefore properly entered summary judgment against her on her retaliation claims.
B
In addition to adopting a broad and unprecedented standard for evaluating retaliation claims under Title VII, the majority also gratuitously reverses a portion of Jordan in a manner by which Judge King, the majority’s author, explicitly vindicates his dissent in Jordan, notwithstanding his concession that this case presents distinguishing circumstances.
Notably, the majority does not overturn all of Jordan. It in no way suggests, for example, that the isolated incident at issue in -that case was sufficiently severe to create a hostile work environment. Indeed, by “observ[ing] that the district court improperly analogized this matter ... to Jordan,” the majority instead confirms that “a racist remark that was made by a merе coworker and not aimed at [the plaintiff] or any other employee” does not amount to a hostile work environment. Ante, at 281.
The majority claims that this aspect of Jordan “is incompatible with Crawford [v. Metropolitan Government of Nashville & Davidson County,
For example, Crawford resolved the narrow question of whether “an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation” has opposed an unlawful employment practice within the meaning of Title VU’s anti-retaliation provision.
Similarly, the issue in Burlington Northern was whether “Title VII’s antiretaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace,” as does the statute’s substantive antidiscrimi-nation provision.
At a more general level, the majority faults the Jordan standard as being at odds with “the hope and expectation that employees will report harassment early, before it rises to the level of a hostile work environment.” Ante, at 282. Along these lines, the 'majority suggests that, when combined with the early reporting “compelled by the Ellerth/Faragher defense,” Jordan places an employee who has experienced an isolated incident of harassment in an untenable position; leaving her vulnerable to retaliation if she reports her supervisor’s conduct and insulating her employer from liability should she fail to report it. Ante, at 282. The majority’s dilemma, however, is a false one. First, the Ellerth/Faragher affirmative defense only enables an employer to avoid vicarious liability for its supervisor’s creation of a hostile work environment if the employer can prove both that it “exercised reasonable care to prevent and correct promptly any ... harassing behavior, and ... that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth,
More to the point, however, it is not the role of this court to incentivize the early reporting of objectionable conduct where Congress itself has not seen fit to do so. Indeed, Congress could have written Title VII’s antiretaliation provision to provide protection to every employee who reports any offensive, racially or sexually charged workplace incident that makes him or her uncomfortable. But it did not. See, e.g., Breeden,
Instead of requiring the plaintiff to produce such evidence, the majority concludes that opposing an incident that is humiliating, regardless of whether it could lead to a hostile work environment, is protected. Ante, at 284-85. Even a cursory consideration of this new per se rule quickly reveals its problems. An isolated incident of humiliating harassment is, of course, more serious than “a mere offensive utterance.” Harris,
The majority’s position is also entirely pessimistic about the ability and desire of employers to stop the progression from isolated utterances of racial slurs to a hostile work environment. Indeed, the majority manifests a fundamental distrust of employers, assuming that, once a humiliating epithet is uttered, the development of a hostile work environment is a fait accom-pli — in other words, that employers are powerless or unwilling to prevent a descent into pervasive hostility. This assumption, of course, finds no more support in Title VII or Supreme Court precedent than it does in basic logic. What is more, even the most conscientious employer will now be reluctant to fire an objectively underperforming employee who has reported a racial epithet that could be considered humiliating because, under the majority’s standard, that employee is effectively presumed to have reasonably believed that he was protesting an unlawful employment practice when he made his complaint. This presumption is at odds with Title VII, the Supreme Court’s jurisprudence, and the fundamental character of employers in America’s modern workplace.
IV
At bottom, I would conclude, as did the district court, that while Clubb’s comments to Liberto were unacceptably offensive, they were made in connection with an isolated incident, and therefore they were insufficient to demonstrate the existence of a hostile work environment that altered the terms and conditions of Liberto’s employment. I would also conclude, as did the district court, that because Title VII’s antiretaliation provision requires, as we have liberally construed it, that an employee’s opposition must be to a hostile work environment that she reasonably believed
In support of its dubious contention that Li-berto perceived Clubb to be in a position to have her employment terminated, the majority points to a September 18, 2010 email from Elman to Heubeck and Berghauer in which Elman recounted his meeting earlier that day with Liberto. See ante, at 271. Elman wrote that he had informed Liberto that Clubb was her "boss.” But as the majority itself acknowledges, at this stage of the case, we must accept the version of events Liberto recited in her deposition testimony. See ante, at 269 n. 1. And Liberto’s testimony contradicts El-man’s apparent understanding of Clubb’s relationship to Liberto. Moreover, in light of the adamancy with which Liberto testified that she "never” understood Clubb to be a manager, we should not use Elman’s email to - refute Liberto’s clearly stated understanding.