Employment & Labor Insider

Are harassment and retaliation lawsuits all going to the jury now? Are employers doomed? Are the plaintiffs' lawyers popping the champagne corks? Is the EEOC dancing for joy?

The employment law world is abuzz about last week's racial harassment/retaliation decision from my own U.S. Court of Appeals for the Fourth Circuit. (Many thanks to an attorney friend who emailed a copy to me the day the decision came out.)

The majority opinion in Boyer-Liberto v. Fontainebleau Corp. said that

*One or two uses of a racial slur could be "severe" enough for a harassment issue to go to a jury

*The harasser may be a "supervisor" -- even if he or she really is not -- if he or she was in a position of influence.

*An employee's complaint about inappropriate workplace behavior can be "legally protected" even if the behavior hasn't quite reached the "severe" level required for a valid harassment claim.

That's my "executive summary." If you want details, here's the decision - all 100 pages of it, including the dissents. (You're welcome.)

I admit that this decision is not great for employers, but I don't think it's the end of the world. Let's do a "before and after."

Before Boyer-Liberto, an employer could  raise the following defenses against a claim of harassment by a supervisor where there was no "tangible job detriment":

*The employer took reasonable steps to prevent harassment (nice policy in plain English, training for managers and employees, multiple avenues for making complaints, etc.)

*The employer reacted appropriately to the alleged harassment as soon as it became aware (separation of alleged victim and alleged harasser, prompt and thorough investigation, appropriate action taken, and no retaliation)

*And, anyway, the supervisor's alleged behavior really wasn't unlawful in the first place 'cuz he called the employee a racial slur only two times. (Now, three times -- that would have been inappropriate.)

After Boyer-Liberto, the employer still has those first two defenses but will have a harder time winning on the third. But shouldn't employers be focused on harassment prevention, and prompt and effective remedial action, anyway? If they are, then the loss of that third defense may not matter too much.

In other words, that third defense is often (not always, but often) a fall-back in case there is an issue about the employer's preventive or remedial measures.

A similar principle applies to retaliation claims. Before Boyer-Liberto, an employer could defend as follows:

*There is no evidence that the employer had a retaliatory motive because the employee was actually fired for stealing/being incompetent/not being the boss's favorite nephew/some other legitimate, legal reason. (This defense is still good and probably always will be. And, yes, nepotism is a legal and legally "legitimate" reason for employment action, even though it isn't exactly fair.)

*Even if the employer's reason was not legit, there was no "materially adverse action" taken against the employee. (The Supreme Court pretty much gutted this defense in 2006.)

*And, anyway, the employee's complaint wasn't legally protected, even though just about every law in the universe now provides legal protection to employee complaints made in good faith.

After Boyer-Liberto, defenses 1 and 2 are unchanged, but defense 3 may be tougher for the employer because more employee complaints will be "legally protected" as a result of the decision. In essence, the court said that an employee can have the protection of the law when she makes a complaint, even if the alleged behavior hasn't quite reached the "illegal" stage yet.

For an oversimplified example, let's say that John can't have a conversation with Marsha without making eye contact with her bosom. This makes Marsha really uncomfortable, especially since John is her supervisor, but if he's just "looking" (and may not even be conscious that he's doing it), his behavior may not be severe enough to be unlawful sexual harassment. Regardless, Marsha reports it to HR and is immediately fired for being a troublemaker.

Before Boyer-Liberto, Marsha's complaint may not have been legally protected because John hadn't broken the law yet. And if Marsha's complaint was not legally protected, then it would not have been illegal for her employer to fire her for making it.

That can't be right!

I know! After Boyer-Liberto, Marsha doesn't have to wait until John makes a pass at her, or fires her for being a cold fish, or does whatever else John may eventually do if Marsha doesn't jerk a knot in him quickly. Her early complaint will be protected, which will (a) encourage her and other employees to report promptly, and (b) encourage the employer to treat her complaint seriously. So, that's really kind of good, right?

Like I said, this decision is not the end of the world for employers. In fact, it doesn't change our preventive advice to employers one iota. However, it should prod employers into doing some housekeeping:

1) Make sure your harassment training is up to date. If it's been 18 months or more, go ahead and get it done. Now. Management training is a must. If you can afford it, you should also include a shorter session for your non-management employees.

2) Watch out for "quasi-supervisors," and especially the ones who like to brag about how much clout they have in the workplace. This includes group leads, team leads, "hourly supervisors," assistant assistant managers, your supervisors who oversee employees from a temporary agency even though they aren't technically the temps' "supervisors," and, as in Boyer-Liberto, non-management employees who have "the inside track" with one or more higher-ups. If employees in these roles are reasonably perceived as being in positions of authority, then you may have supervisor liability for their conduct even if you don't consider them "supervisors."

(I recommend including "quasi-supervisors" in the harassment training that you conduct for managers. If you prefer not to do that, then it's fine to train them separately, but give them the same information that you give to the managers.)

3) Take all complaints of inappropriate behavior seriously. Don't delay taking action while you agonize over whether the alleged behavior meets the legal definition of "unlawful harassment." First, because you may reach the wrong conclusion. Second, because even if you reach the right conclusion, by the time you do, it may be too late.

Promptly investigate, and take the action that is appropriate under the circumstances based on what you find out. And never punish an employee for complaining in good faith.