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

Abstract

On May 7, 2015, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, held in favor of Reya C. Boyer-Liberto, an African American cocktail waitress employed by defendant Fontainebleau Corporation, who claimed racial harassment in violation of Title VII by fellow employee, Trudi Clubb. In Boyer-Liberto v. Fontainebleau Corp., the majority based its analysis on Clubb’s use of a racial epithet, twice in a twenty-four hour period, which they determined was severe or pervasive enough to create a racially hostile work environment, even in isolation. The separate concurring and dissenting opinions emphasized the majority’s departure from precedent established in Harris v. Forklift Systems, Inc. and Faragher v. City of Boca Raton. Both the concurrence and dissent were concerned that the majority’s decision would increase segregation in the workplace, which would be counterproductive to Title VII’s purpose, and would lead to an increase in frivolous employment litigation.