Reya Boyer-Liberto v. Fontainebleau Corporation, No. 13-1473 (4th Cir. 2015)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 13, 2014.
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ON REHEARING EN BANC PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1473 REYA C. BOYER-LIBERTO, Plaintiff – Appellant, v. FONTAINEBLEAU CORPORATION, trading as Fontainebleau Hotel; LEONARD P. BERGER, Clarion Resort Defendants – Appellees. ------------------------------------EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION; PUBLIC JUSTICE CENTER, INC., Amici Supporting Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:12-cv-00212-JKB) Argued: September 18, 2014 Decided: May 7, 2015 Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges. Vacated 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. ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC, Salisbury, Maryland, for Appellant. Harriet Ellen Cooperman, SAUL EWING LLP, Baltimore, Maryland, for Appellees. Paul D. Ramshaw, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus U.S. Equal Employment Opportunity Commission. ON BRIEF: Brett S. Covington, SAUL EWING LLP, Baltimore, Maryland, for Appellees. P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Jennifer S. Goldstein, Acting Assistant General Counsel, Office of General Counsel, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus U.S. Equal Employment Opportunity Commission. Stephen Z. Chertkof, Douglas B. Huron, HELLER, HURON, CHERTKOF & SALZMAN PLLC, Washington, D.C.; Ilana Gelfman, Francis D. Murnaghan, Appellate Advocacy Fellow, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici Metropolitan Washington Employment Lawyers Association and the Public Justice Center. 2 KING, Circuit Judge: 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, Liberto 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 (D. Md. Apr. 5, 2013), ECF No. 52, and a not-fully-unanimous panel of this Court affirmed, see BoyerLiberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014). The panel’s decision was vacated, however, by our grant of rehearing en banc. 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, 524 U.S. 775, 3 788 (1998), that an isolated incident of harassment, extremely serious, can create a hostile work environment. if We also recognize that an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone. Finally, we specify that, to the extent today’s decision is in conflict with Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), Jordan is hereby overruled. I. A. The record in this matter reflects that on August 4, 2010, Liberto began containing nightclub, facilities. 1 working guest and a at rooms, the Clarion, several conference center an oceanfront restaurants with and meeting and hotel bars, a banquet During the seven weeks she was employed with the 1 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, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Thus, like the district court, we accept that Liberto was called a “porch monkey” on two consecutive days, and that the defendants knew of at least one of those alleged slurs when the decision to discharge Liberto was made. See Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212, slip op. at 3 n.2 (D. Md. Apr. 5, 2013), ECF No. 52. Much of our factual recitation is drawn from Liberto’s deposition testimony; we do not rely on her (Continued) 4 Clarion’s Food assorted and roles, Beverage including Department, restaurant Liberto hostess, worked restaurant banquet server, bartender, and cocktail waitress. in and According to Liberto, the Clarion assigned her that variety of jobs so that she could learn all positions within the Food and Beverage Department as part of her training. 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. fill the The bartender in the adjacent main bar refused to 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 restaurant back to kitchen. the nightclub Liberto that carried took the her Hula through Hula the briskly through the kitchen and across the nightclub to her customer’s table. She then went to a server station, which was located in interrogatory answers, which the excluded from consideration. See id. 5 district court properly 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. 2 Clubb, still shouting, quickly approached Liberto, who turned her face away from Clubb in an effort to furious. remain calm — a move that made Clubb even more Clubb then came so close to Liberto that Liberto could feel Clubb’s breath on her face as Clubb stood at Liberto’s side. Indeed, continuing Liberto’s face with saliva. should have neither walked to yell at Liberto, Clubb sprayed Clubb’s message was that Liberto through the kitchen nor ignored Clubb, and Liberto repeatedly indicated that she understood and agreed. Clubb’s shouting nonetheless persisted, even as left the server station to tend to nightclub customers. 2 Liberto Clubb Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal. 6 was now loudly berating Liberto for walking away from her, at first following Liberto into the nightclub and then moving back to the server station. Upon Liberto’s subsequent return to that area, Clubb finally proceeded to exit the nightclub into the kitchen. As she did so, Clubb threatened Liberto in words that included, “[I’m] going to get [you]” and “[I’m] going to make [you] sorry.” J.A. 252-53. Clubb then concluded her threat by turning to look at Liberto and calling her either a “damn porch monkey” or a “dang porch monkey.” Upon arriving for a See id. at 258. 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,” Clubb out of the office. prompting Id. at 263-64. Liberto to follow Clubb and Liberto sat at a nearby table, and Clubb reprimanded Liberto, in a raised and angry night. voice, for passing through the kitchen the prior As the two women then rose from the table and pushed in their chairs, Clubb threatened, “I’m gonna get you. go to [hotel owner] Dr. Berger.” Id. at 266. I’m gonna Her voice still loud and angry though somewhat lower than before, Clubb capped 7 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. notes, Berghauer discussion that with Clubb prepared Liberto, called her a typewritten which a From handwritten included “porch summary of Liberto’s monkey” on her allegation September 15. Berghauer provided the summary on September 17 to Dr. Berger and General Manager September although 18 Mark to Clubb Elman, further denied and Elman discuss ever her using met with Liberto complaint. the term on Meanwhile, “porch monkey,” Heubeck issued her a written notice on September 18 advising that, as “a member . . . , [Clubb] is of our expected Food to & Beverage conduct Management herself as team such” and “needs to be cautious the language or phrases she uses can not be perceived as racist or derogatory.” According to Dr. Berger, J.A. 311. 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 evaluation of Liberto assignments to failure account, and in Heubeck attributed every 8 role her she gave a variety tried; negative of thus, job 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, Liberto 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.” held a manager manager. J.A. 213. title and Liberto did not know that Clubb did not consider Clubb to be her See id. at 214 (Liberto’s deposition testimony that she reported to Avery and Heubeck, and that Avery told Liberto “not to go to [Clubb] because [Clubb] did not have the power to do voids or make decisions”). Nevertheless, Clubb conveyed to Liberto — and Liberto got the message — that Clubb was in a position to have Liberto terminated. just her second week of work at the Before she had finished Clarion, Liberto “felt extremely singled out” by Clubb and perceived that “my position was being threatened” by her. August 16, 2010 Twitter See id. at 277-79 (discussing an message from Liberto to a co-worker saying that Clubb is “after me like [a] starving wol[f] on a bone”). Clubb repeatedly told Liberto “what my place was” and “always made it clear that Dr. Berger would listen to anything 9 she said and wouldn’t believe me.” Id. at 279. Clubb’s conduct led Liberto to understand that Clubb “did have power that I did not have.” Id. at 274. Consistent with that perception, Elman informed Liberto during their September 18, 2010 meeting that Clubb was Liberto’s “boss.” to Heubeck and Berghauer See id. at 324 (September 18 email from Elman recounting what he told Liberto). B. On January 23, 2012, after exhausting her administrative remedies with the federal government’s Equal Employment Opportunity Commission (the “EEOC”), Liberto filed her complaint in the District claims: one retaliation of claim pursuant Maryland. each to Fontainebleau Corporation, Fontainebleau Hotel; and The of complaint hostile Title VII trading one work claim asserted environment against as the each solely Clarion of four and the Resort hostile work environment and retaliation under 42 U.S.C. § 1981 against both the Fontainebleau Corporation and Dr. Berger. 1. Following discovery, summary judgment. the defendants filed a motion for 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 10 alter Liberto’s conditions of employment and produce an abusive work environment. See Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (“To demonstrate . . . a racially hostile work environment, a plaintiff must show that there is (1) unwelcome conduct; (3) which (2) that is is based sufficiently on the severe or plaintiff’s pervasive . . . to race; alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” (alteration and internal quotation marks omitted)); see also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (explaining that the elements of a hostile work environment claim “are the same under either § 1981 or Title VII”). 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, 424 F.3d 397, 405-06 (4th Cir. 2005) (“In order to establish a prima facie case of retaliation, a (1) that she in employer took engaged an plaintiff adverse a must protected employment prove three activity; action elements: (2) that against her; her and (3) that there was a causal link between the two events.”); see also Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004) (recognizing that elements of prima facie § 1981 and Title VII retaliation claims are identical). 11 The defendants elaborated that opposition activity believed that pervasive to Liberto’s complaint because Clubb’s engender she conduct a was could was prohibited not not a reasonably sufficiently hostile protected work have severe or environment. See Navy Fed., 424 F.3d at 406 (explaining that an opposition activity, such as making an internal complaint, is protected where an employee opposes either “employment actions actually unlawful under Title VII” or “employment actions [she] reasonably believes to be unlawful”). 2. In seeking summary judgment, the defendants substantially relied on Corp., our 458 precedent F.3d 332 (4th in Jordan Cir. v. Alternative 2006). There, the Resources African- American plaintiff alleged that, while watching a news report on a workplace television about the capture of the infamous D.C. snipers in 2002, a co-worker exclaimed in his presence, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f[uc]k them.” at 336. See Jordan, 458 F.3d The plaintiff, Jordan, reported the comment to his supervisors and was fired within a month of his complaint. at 337. Id. Jordan then filed suit against his employers, alleging, inter alia, retaliatory discharge in contravention of Title VII and § 1981. Id. The district court dismissed Jordan’s complaint under Federal Rule of Civil Procedure 12(b)(6) for 12 failure to state a claim upon which relief can be granted, and Jordan appealed to our Court, which affirmed by a split panel decision. 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.’” § 2000e-3(a)). Jordan, 458 F.3d at 338 (quoting 42 U.S.C. The majority continued that, “[r]eading the language generously to give effect to its purpose, however, we have also held that opposition activity is protected when it responds to an employment practice that the employee reasonably believes is unlawful.” Id. (citing Navy Fed., 424 F.3d at 406- 07). 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)(1) in the form of “maintaining ‘workplace a . . . racially hostile permeated with work environment, discriminatory i.e., a 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, 458 F.3d at 339 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). 13 The majority further recognized that “[c]ourts 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 a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 78788 (1998)). offhand As the majority explained, comments, and isolated “‘simple incidents (unless teasing, extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.’” at 788). The environments discrete majority generally instances of Id. (quoting Faragher, 524 U.S. also result noted that only after harassment.” an Id. “hostile work accumulation (citing Nat’l of R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. . . . Such claims are based on the cumulative effect of individual acts.”)). To assess the merits of Jordan’s Title VII retaliation claim, the panel majority clarified, “the question reduces to whether Jordan environment or, complained if there about was not an actual one, reasonably have believed there was one.” 339. The majority first concluded 14 whether hostile work Jordan could Jordan, 458 F.3d at that no hostile work environment actually existed, in that the “black monkeys” comment — though “unacceptably crude and racist” — “was an isolated response fellow employee.” directed at the Id. at 339-40. snipers” rather than “any The majority underscored that the comment “was a singular and isolated exclamation” that did not and could not have “altered the terms and conditions of [Jordan’s] employment,” workplace permeated improper interference psychological harm.” and by that racism, with Jordan by work, did threats or by “not of conduct describe a violence, by resulting in Id. at 340. 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, 458 F.3d at 341. But the majority also acknowledged that, pursuant to Navy Federal, Jordan could rely on a reasonable belief that a hostile work environment Federal “was holds taking that an shape.” employee See id. seeking at 340-41 (“Navy protection from retaliation must have an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress.”); see also Navy Fed., 424 F.3d at 406-07 (concluding that plaintiff reasonably believed she was opposing unlawful retaliation by disrupting plan that had been set in motion by employer to terminate 15 another employee for her discrimination complaints). The majority elaborated that, “[u]nder § 2000e-3(a) as construed by Navy Federal, we cannot simply assume, without more, that the opposed conduct will continue or will be repeated unabated; rather, the employee must have an objectively actually occurring observes and reasonable based reasonably (emphasis omitted). on belief that circumstances believes.” a that Jordan, 458 violation the is employee F.3d at 341 From there, the majority determined that Jordan could not establish a reasonable belief that a hostile work environment was in progress, in that “no allegation in the complaint suggests that a plan was in motion to create such an environment, let alone that such an environment was even likely to occur.” Id. at 340. Accordingly, the majority opinion affirmed the dismissal of Jordan’s Title VII retaliation claim, as well as his § 1981 retaliation claim. 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, 458 F.3d at 352 (King, J., dissenting) (citing Navy Fed., 424 F.3d at 406-07). that Navy The dissent disputed the majority’s view, however, Federal requires an employee opposing a potential hostile work environment to prove “that a plan was in motion to create such an environment.” That is, the dissent distinguished 16 the discrete action opposed by the Navy Federal plaintiff (the imminent conduct retaliatory opposed in discharge Jordan of another (conduct that, employee) if from repeated, the could amount to a hostile work environment). 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 an independent basis for believing the conduct might be repeated.” Jordan, 458 F.3d the at impermissible 354. “Indeed,” whole, the even dissent absent emphasized, “we require employees to report such incidents in order to prevent hostile work environments from coming into being.” Id. (referring to employer’s affirmative Ellerth/Faragher defense, see Faragher, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998), imposing duty on employee to avoid harm by reporting harassment to employer). The dissent further highlighted precedent observing “that an employee’s ‘generalized fear of retaliation does not excuse a failure to report’ harassing conduct, because ‘Title VII expressly prohibits any retaliation harassment.’” against [employees] for reporting . . . Id. at 355 (alterations in original) (quoting Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001)). then-recent And, edict the that dissent stressed the “‘[i]nterpreting the 17 Supreme Court’s antiretaliation provision assure to the provide broad cooperation protection upon which from retaliation accomplishment of helps [Title VII’s] primary objective’ — preventing harm — ‘depends.’” Id. at 352 (alteration in original) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). 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, 458 F.3d at 355. The of dissent opinion to lamented the that, contrary, because “employees the in panel this majority’s Circuit who experience racially harassing conduct are faced with a ‘Catch22.’” Id. As the dissent explained those employees’ quandary, “[t]hey may report such conduct to their employer at their peril (as Jordan did), or they may remain quiet and work in a racially hostile and degrading work environment, with no legal recourse beyond resignation.” majority’s inconsistent retort by Id. that both But see Jordan, 458 F.3d at 342 (the “Jordan’s encouraging dilemma, and reporting, is presented too abstractly. that the discouraging law is ‘early’ The strong policy of removing and preventing workplace discrimination can and does coexist with Navy Federal’s objective reasonableness standard”). 18 The opinion of the Jordan majority thereafter withstood a petition for rehearing en banc, which was denied on a 5-5 vote of the judges then in active service. See Jordan v. Alternative Res. Corp., 467 F.3d 378 (4th Cir. 2006). 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 (D. Md. Apr. 5, 2013), ECF No. 52. 3 3 In rejecting Liberto’s hostile 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.1. Regardless, the court 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, slip op. at 5 (D. Md. Apr. 5, 2013), ECF No. 52. As for the retaliation claims, the court deemed it “indisputable” that the defendants took an adverse employment action against Liberto (element two) and that there was a causal link between her racial harassment complaint and the adverse employment action (element three). Id. at 7. 19 work environment claims, the district court determined that “[t]he two incidents of use of a racial epithet, assuming they occurred as Liberto testified, simply do not comprise either pervasive or Id. at 6. evidence severe conduct, however unacceptable they are.” The court explained that it had “compare[d] the in this case to that in [three others]” and “conclude[d] the conduct at issue here does not rise to the level of conduct found to be severe or pervasive in those Fourth Circuit cases.” Id. (citing Anderson v. G.D.C., Inc., 281 F.3d 452, 459 (4th Cir. 2002) (“Anderson was subjected, on a daily basis, to verbal assaults of the most vulgar and humiliating sort.”); 179, Conner v. (4th Cir. 199 profound Schrader-Bridgeport humiliation 2000) (“Ms. because of Int’l, Conner her Inc., experienced gender, unlike 227 F.3d regular, the male machine operators.”); Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (“[Amirmokri] testified that for six months . . . co-workers abused him almost daily, calling him names like ‘the local terrorist,’ a ‘camel jockey’ and ‘the Emir of Waldorf.’”)). The district court then invoked Jordan for the proposition that an “isolated racist comment” is “‘a far cry from . . . severe or an environment pervasive that [plaintiff’s] employment.’” of crude they and alter[] racist the conditions conditions so of Id. (third alteration in original) (quoting Jordan, 458 F.3d at 340). 20 In concomitantly rejecting Liberto’s retaliation claims, the court again looked to Jordan and ruled that “‘no objectively reasonable person could have believed that the [plaintiff’s work environment] was, or was soon going to be, infected by severe threatening, or humiliating harassment.’” or pervasive racist, Id. at 8 (alteration in original) (quoting Jordan, 458 F.3d at 341). Liberto reviewed by timely a noted three-judge her panel appeal, of this and the Court. matter See was Boyer- Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014). The panel properly decision awarded was summary unanimous judgment that on the defendants Liberto’s hostile were work environment claims, in that Clubb’s “use of [the term ‘porch monkey’] 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 Liberto’s employment.” Id. at 356. The panel observed that Liberto had “not pointed to any Fourth Circuit case, nor could she, finding the presence of a hostile work environment based on a single incident.” Id. at 358 (comparing Jordan with Anderson, Conner, and Amirmokri). 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 objectively reasonable juror could have 21 found the presence of a hostile work environment, as we today hold, it stands to reason that Liberto also could not have had an objectively reasonable belief that a hostile work environment existed.” Although Boyer-Liberto, 752 F.3d at 360 (emphasis omitted). the panel majority allowed that an “employee’s opposition may be protected before the hostile environment has fully taken form,” the majority faulted Liberto for failing to “present any indicators that the situation at the Clarion would have ripened into a hostile work environment.” Id. In that regard, the majority equated Liberto’s case with Jordan. See id. (“Just as in Jordan, we conclude here that ‘while in the abstract, continued repetition of racial comments of the kind [Clubb] made might have led to a hostile work environment, no allegation in the [record] suggests that a plan was in motion to create such an environment, let alone that such an environment was even likely to occur.’” (alterations in original) (quoting Jordan, 458 F.3d at 340)); see also id. at 361 (Shedd, J., concurring) (“Based on this Court’s decision in Jordan . . . , I agree with Judge Niemeyer that summary judgment should . . . be affirmed on the retaliation claim.”). The dissent distinguished the facts in this case from those in Jordan and concluded that, “[p]articularly in light of these significant differences, . . . Liberto could believed that Clubb’s conduct was actionable.” 22 have reasonably Boyer-Liberto, 752 F.3d at 363 (Traxler, C.J., concurring in part and dissenting in part) (pointing out that Jordan’s co-worker made a single comment not directed at Jordan or another employee, while Clubb called Liberto herself “the very same name in the very same threatening context” on two consecutive days). In any event, the dissent also questioned whether Jordan was correctly decided. See id. (“I share in the sentiment Judge King expressed so well in his dissent in Jordan that our very narrow interpretation of what constitutes a reasonable belief in this context has placed conduct discriminatory employees in a who classic experience ‘Catch-22’ racially situation.” (alteration and internal quotation marks omitted)). Following issuance of the panel’s decision, Liberto sought rehearing en banc, and a majority of our judges active service voted to grant Liberto’s petition. in regular Accordingly, the panel’s decision was vacated, and today our en banc Court assesses anew the propriety of judgment award to the defendants. the district court’s summary 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, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Summary judgment is appropriate “if the 23 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 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 individual’s religion, sex, or national origin.” An employer contravenes race, color, 42 U.S.C. § 2000e-2(a)(1). § 2000e-2(a)(1) by, inter alia, requiring an African-American employee to work in a racially hostile environment. U.S. 57, 65-67 (1986). workplace is See Meritor Sav. Bank, FSB v. Vinson, 477 A hostile environment exists “[w]hen the 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.” 510 U.S. 17, 21 (1993) Harris v. Forklift Sys., Inc., (internal 24 quotation marks omitted). Thus, to prevail racially on hostile, (1) unwelcome a “a conduct; Title VII claim plaintiff (2) that must is that a show based workplace that on the there is is plaintiff’s . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work employer.” environment; and (4) which is imputable to the Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (alteration and internal quotation marks omitted). The same test applies to a hostile work environment claim asserted under 42 U.S.C. § 1981. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001); see also 42 U.S.C. § 1981(a) (providing that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens”); Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369, 373 (2004) (recognizing that hostile work environment claims may be brought under § 1981). 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 “psychologically to, establish injurious.” that See the Harris, environment 510 U.S. at is 22. Whether the environment is objectively hostile or abusive is “judged from the perspective of 25 a reasonable person in the plaintiff’s position.” Oncale v. Inc., 523 U.S. 75, 81 (1998). looking at all the Sundowner Offshore Servs., That determination is made “by circumstances,” which “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably employee’s work performance.” not, and test.” by its nature interferes with Harris, 510 U.S. at 23. cannot be, a mathematically an It “is precise Id. at 22. To be sure, viable hostile work environment claims often involve repeated conduct. Morgan, 536 U.S. 101, See Nat’l R.R. Passenger Corp. v. 115-17 (2002). That is because, “in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. at 115. For example, “‘mere utterance of an . . . epithet which engenders offensive feelings in an employee’ does not sufficiently affect the conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21 (alteration in original) (quoting Meritor, 477 U.S. at 67). The same See goes Faragher for v. “simple City of teasing Boca [and] Raton, 524 offhand U.S. comments.” 775, 788 (1998). Importantly, however, an “isolated incident[]” of harassment can “amount to discriminatory changes in the terms and conditions of employment,” if that incident is (internal quotation marks omitted). 26 “extremely serious.” Id. In measuring the severity of harassing conduct, the status of the harasser supervisor’s use may be a significant of [a racial — factor epithet] e.g., impacts the environment far more severely than use by co-equals.” v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th “a work Rodgers Cir. 1993). Simply put, “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998). 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., 133 S. Ct. 2434, 2439 (2013); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc) (“[T]he employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.”). On the other hand, where the harasser is the victim’s supervisor, “different rules apply”: The employer is strictly liable for the supervisor’s harassing behavior if it “culminates in a tangible liability (1) the by employment action,” establishing, employer exercised as an but affirmative reasonable 27 otherwise care to “may escape defense, prevent that and correct any harassing failed unreasonably behavior take to and (2) that advantage of the the plaintiff preventive corrective opportunities that the employer provided.” or Vance, 133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765). imposes a harassing Radiant duty (discussing and on behavior Energy The Ellerth/Faragher defense, in essence, the to the Corp., to report employer. 240 “employee’s Ellerth). victim F.3d reporting Relatedly, a See 262, her Barrett 268 (4th requirement” plaintiff supervisor’s v. Applied Cir. under seeking 2001) Faragher to impute liability to her employer for harassment by a co-worker may not be able to establish the employer’s negligence if she did not report the harassment. See Vance, 133 S. Ct. at 2453 (recognizing that evidence relevant to negligence inquiry would include evidence complaints”); id. that at employer 2464 “failed (Ginsburg, J., to respond dissenting) to (“An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability under a negligence standard.”). 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 employment actions against the victim.” 28 to take tangible Vance, 133 S. Ct. at 2439 (majority opinion). “effect a hiring, ‘significant firing, An employee so empowered is able to change failing in to employment promote, status, such reassignment as with significantly different responsibilities, or a decision causing a significant Ellerth, change 524 U.S. in at benefits.’” 761). As Id. such, a at 2443 (quoting supervisor “authority to inflict direct economic injury.” has the Id. at 2448. To be considered a supervisor, the employee need not have the final say as to the tangible employment action; instead, the employee’s decision management.” U.S. at may be “subject to approval by higher Vance, 133 S. Ct. at 2446 n.8 (citing Ellerth, 524 762). The Vance Court determined that one of the harassers in Faragher “possessed the power to make employment decisions having direct economic consequences for his victims” based on the following: “No one [had been] hired without his recommendation”; he “initiated firing and suspending personnel”; his performance evaluations “translated into salary increases”; and he “made (internal recommendations quotation marks regarding omitted). promotions.” Additionally, the Id. Court observed that, “even if an employer concentrates all decisionmaking isolate authority itself in from a few individuals, heightened liability it likely under will not Faragher and Ellerth,” in that those individuals likely will have to rely on the recommendations of others, and “the employer may be held to 29 have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.” Id. at 2452 (citing Ellerth, 524 U.S. at 762). 2. In seeking environment summary claims, judgment the on defendants’ Liberto’s sole hostile contention work 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 arguments abusive included whether the work that harassment environment. there she was a suffered 2010, was sufficiently severe. Liberto’s genuine on counter- dispute September 14 as and to 15, To resolve that issue today, we need not — and, in any event, on this record cannot — determine whether Clubb was actually Liberto’s supervisor or simply her co-worker, a fact relevant to Clarion’s vicarious liability. the separate question of the Nevertheless, we are obliged to consider how Clubb portrayed her authority and what Liberto thus reasonably believed Clubb’s power to be. See Oncale, 523 U.S. at 81 (“[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position . . . .”). The defendants understood Clubb to restaurant manager, have be see suggested a J.A. that, “glorified 213-14, 30 because hostess” Liberto Liberto and could not not a have reasonably perceived that Clubb’s conduct was severe enough to create a hostile evidence, work however, environment. that Clubb That repeatedly premise and ignores 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 (Liberto’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.” 266. Id. at Finally, while speaking with Liberto on September 18 about 31 her racial harassment complaint, General Manager Elman validated Clubb’s assertion Liberto’s “boss.” Properly of authority by declaring Clubb to be Id. at 324. considering that evidence, we must accept that Liberto believed — and reasonably so — that Clubb could make a discharge decision or stamped by Dr. Berger. recommendation that would be rubber- Thus, in gauging the severity of Clubb’s conduct, we deem Clubb to have been Liberto’s supervisor. Cf. Vance, for 133 S. Ct. at 2446 n.8, 2452 (recognizing that, purposes of employer’s vicarious liability, employee may qualify as supervisor if she can initiate tangible employment actions “subject to approval by higher management” recommendations on which employer relies). conduct as having the “particular or make And we view Clubb’s threatening character” of harassment perpetrated by a supervisor against her subordinate. See Ellerth, 524 U.S. at 763. That perspective is especially appropriate here, where Clubb employed racial epithets to cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate Liberto’s employment. 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, 242 F.3d at 185. “is pure describing anathema an to The latter epithet, of course, African-Americans.” African-American 32 as a Id. “monkey,” Similarly, and thereby “suggest[ing] that a human being’s physical appearance is essentially a caricature of a jungle beast[,] goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.” Id.; see also, e.g., Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (recognizing that “[p]rimate rhetoric has been used to intimidate African- Americans” and that “[t]he use of the term ‘monkey’ and other similar words,” including the variation “porch monkey,” has “been part of actionable racial harassment claims across the country” (citing cases)). As we and several of our sister courts of appeals have recognized, “‘[p]erhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as “nigger” by a supervisor in the presence of his subordinates.’” Spriggs, 242 F.3d at 185 (quoting Rodgers, 12 F.3d at 675); accord Ellis v. Houston, 742 F.3d 307, 325-26 (8th Cir. 2014); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013); Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004). 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. 33 Cf. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1253-54 (11th Cir. 2014) (concluding that, although a Caucasian supervisor’s carving of “porch monkeys” into the aluminum of a ship where he was working with the African-American plaintiff “was an isolated act, it was severe”); Ayissi-Etoh, 712 F.3d at 577 (acknowledging that, where a supervisor “used a deeply offensive racial epithet [‘nigger’] when yelling at Ayissi-Etoh to get out of the office,” that “single incident might well have been sufficient to establish a hostile work environment”); id. at 580 (Kavanaugh, J., concurring) (“[I]n my view, being called the nword by a supervisor — as Ayissi-Etoh alleges happened to him — suffices by itself to establish a racially hostile work environment.”). In thus vacating the summary judgment award on Liberto’s hostile work environment claims, we identify this as the type of case contemplated perhaps in “isolated,” serious.” Faragher can where properly be the deemed See Faragher, 524 U.S. at 788. that this is a first for our Court. harassment, to be though “extremely We also acknowledge We reject, however, any notion that our prior decisions, including Jordan v. Alternative Resources Corp., were meant to require more than a single incident of harassment in every viable hostile work environment case. Specifically, we observe that the district court improperly analogized this matter (involving a racial epithet 34 directed at Liberto by her supervisor) to Jordan (concerning a racist remark that was made by a mere co-worker and not aimed at Jordan or any other employee). Cir. 2006). See 458 F.3d 332, 339-40 (4th We further note that, in the cases unfavorably compared to this one by the district court, the harassment was so severe and pervasive that there were no close calls. See Anderson v. G.D.C., Inc., 281 F.3d 452, 459 (4th Cir. 2002) (“The evidence was unquestionably sufficient to submit Anderson’s hostile environment claim to the jury.”); Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 199 (4th Cir. 2000) (“[T]here is ample support for the jury finding of severe or pervasive conduct sufficient to constitute a hostile work environment.”); Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (“A reasonable person could easily find this atmosphere to be hostile.”). Liberto’s case may be different from Anderson, Conner, and Amirmokri, but it is no less worthy of a jury trial. 4 4 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, 227 F.3d at 197 (“The more serious incidents enumerated here were complemented by numerous additional occurrences that, in (Continued) 35 B. 1. Turning proscribes to Liberto’s discrimination retaliation against an claims, employee Title because, VII in relevant part, she “has opposed any practice made an unlawful employment practice by this subchapter.” 3(a). 42 U.S.C. § 2000e- 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., 333 F.3d 536, 543-44 (4th Cir. 2003). To establish a prima facie case of retaliation in contravention of Title VII, a plaintiff must prove “(1) that she engaged in a protected activity,” as well as “(2) that her employer took an adverse employment action against her,” and “(3) that there was a causal link between the two events.” EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005). A prima facie retaliation claim under 42 U.S.C. § 1981 has the same elements. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004); see also CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 isolation, may have seemed less problematic, but which actually served to exacerbate the severity of the situation.”). 36 (2008) (confirming that “§ 1981 encompasses retaliation claims”). 5 In the context of element one of a retaliation claim, an employee is protected when she opposes “not only . . . employment actions actually unlawful under Title VII but also employment actions [she] reasonably believes to be unlawful.” Navy Fed., 424 F.3d at 406. The Title VII violation may be complete, or it may be in progress. See id. at 406-07; see also Jordan, 458 F.3d at 340-41 (“Navy Federal holds that an employee seeking protection from retaliation must have an objectively reasonable belief in light of all the circumstances that a Title VII violation Jenney, 327 has F.3d happened 307, 320 or is (4th in progress.”); Cir. 2003) Peters v. (concluding, in reliance on decisions under Title VII, that “to show protected activity, the plaintiff in a Title VI retaliation case need only prove that he opposed an unlawful employment practice which he reasonably believed had occurred or was occurring” (alterations and internal quotation marks omitted)). 5 In other words, an 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 § 1981 claim after the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) (holding that but-for standard of causation applies to Title VII retaliation claims). We need not consider that question today, however, because the defendants have raised no issue with respect to causation. 37 employee is protected from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress. 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.” at 340. See 458 F.3d We reject that aspect of Jordan today, however, for several reasons. First world of where all, bigots the Jordan announce standard their “imagines intentions a to fanciful 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 African-Americans through racial harassment.” F.3d at 353-54 (King, J., dissenting). conditions of See Jordan, 458 Tellingly, intent to create a hostile work environment is not an element of a hostile environment claim. The Jordan standard also is at odds with the hope and expectation that employees will report harassment early, before 38 it rises to the level of a hostile environment. Where the harasser is her supervisor and no tangible employment action has been taken, the victim is compelled by the Ellerth/Faragher defense to make an internal complaint, i.e., “to take advantage of any preventive or corrective opportunities provided by the employer.” victim See of a Faragher, co-worker’s 524 U.S. at 807. Similarly, harassment is prudent to alert the her employer in order to ensure that, if the harassment continues, she can establish the negligence necessary to impute liability. See Vance, 133 S. Ct. at 2453. essential which is to accomplishing “not to The reporting obligation is provide Title redress VII’s Faragher, 524 U.S. at 806. but “primary to avoid objective,” harm.” See Thus, we have recognized that the victim is commanded to “report the misconduct, not investigate, gather evidence, and then approach company officials.” See Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001). Further, we have emphasized that an employee’s “generalized fear of retaliation does not excuse a failure to report . . . expressly prohibits employee].” But harassment,” any particularly retaliation where against “Title [the VII reporting See Barrett, 240 F.3d at 267. 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 39 their Such statutory a “fear lack of silent entitlement of protection retaliation instead of discrimination.” Davidson marks is the voicing protection no from retaliation. inconsequential leading their reason concerns matter, why people about bias for stay and See Crawford v. Metro. Gov’t of Nashville & Cnty., quotation is to Tenn., 555 omitted). U.S. 271, Quelling 279 that (2009) fear, (internal the Crawford Court extended protection “to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” at 273. real See id. To do otherwise, the Court explained, would “create a dilemma for any knowledgeable employee.” Id. at 279. Namely, “[i]f the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability [by invoking the Ellerth/Faragher defense].” Id. The Court concluded that “[n]othing in the statute’s text or our precedent supports this catch-22.” Id. Of course, the same can be, and has been, said about the Jordan standard. See Jordan, 458 F.3d at 355 (King, J., dissenting) (“As a result of today’s decision, employees in this Circuit who experience racially harassing conduct are faced with a ‘Catch22.’”). 40 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, 548 U.S. 53, 67 (2006); see also, e.g., Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173-75 (2011). As the Burlington Northern Court explained, Title VII must read be “to provide broader protection for victims of retaliation than for [even] victims of race-based, ethnic-based, religion-based, or gender-based discrimination,” because “effective enforcement could . . . only be expected if employees felt free to approach officials with their grievances.” See 548 U.S. at 66-67 (internal quotation marks omitted)). 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 American community.” dissenting). expects: insulting to members of the African- See Jordan, 458 F.3d at 351 (King, J., Jordan then did exactly what Title VII hopes and He reported the comment to his employers in an effort to avert any further racial harassment. complaint, however, Jordan was fired. 41 Because of his internal In light of the text and purpose of Title VII, as well as controlling Supreme Court and Fourth Circuit decisions, Jordan surely merited protection from retaliation. That is, [w]ithout question, [the comment made by Jordan’s coworker] is the stuff of which 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 the proper standard plainly cannot endure. b. The standard question, for then, becomes this: determining whether an What employee is 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, 532 U.S. 268, 270-71 (2001) (looking to severity of single incident in evaluating reasonableness of employee’s belief that incident created actionable hostile environment). That assessment thus involves factors a used to judge whether 42 workplace is sufficiently hostile or abusive for purposes of a hostile environment claim — specifically, whether the discriminatory conduct “is physically threatening or humiliating, or a mere offensive utterance.” Harris, 510 U.S. at 23. — e.g., “simple See Of course, a single offensive utterance teasing” or an “offhand comment[],” see Faragher, 524 U.S. at 788 — generally will not create a hostile environment without significant repetition or an escalation in the harassment’s severity. See Ayissi-Etoh, 712 F.3d at 579 (Kavanaugh, J., concurring) (“The more severe the harassment, the less pervasive it needs to be, and vice versa.” (internal quotation marks omitted)). But an isolated incident that is physically threatening or humiliating will be closer — even if not equal — to the type of conduct actionable on its own because it is “extremely serious.” Accordingly, as See Faragher, 524 U.S. at 788. 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. only with Clark County, This standard is consistent not but also with other Supreme precedent, including Crawford and Burlington Northern. so because it protects an employee like Jordan who Court That is promptly speaks up “to attack the racist cancer in his workplace,” rather than “remain[ing] silent” and “thereby allowing [discriminatory] conduct to continue unchallenged,” 43 while “forfeiting any judicial remedy he might have.” See Jordan, 458 F.3d at 356 (King, J., dissenting). 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. 6 6 Notably, in its brief as amicus curiae supporting Liberto, the EEOC urges us to adopt a standard suggested by the Jordan dissent: that an employee engages in a protected opposition activity when she complains about an isolated incident of harassment that would create a hostile work environment if repeated often enough. See Jordan, 458 F.3d at 354 (King, J., dissenting) (“When the cumulative nature of such an environment is properly considered, it is clear that employees are protected under Title VII from employer retaliation if they oppose conduct that, if repeated, could amount to a hostile work environment.”). When the isolated incident is merely offensive — rather than physically threatening or humiliating — the ifrepeated standard might well be appropriate. Contrary to the argument of the defendants, it is not necessarily precluded by the Supreme Court’s Clark County decision. That is, although the Court concluded that the Clark County plaintiff had not engaged in a protected opposition activity by reporting an isolated incident that was merely offensive, the Court did so by assessing whether the plaintiff could have reasonably believed that incident alone created a hostile environment. See 121 S. Ct. at 270-71. The Court did not consider whether the plaintiff could have reasonably believed that a hostile work environment, even though not fully formed, was in progress. In any event, we (Continued) 44 2. 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, 242 F.3d at 185. Indeed, we determined that a reasonable jury could find that Clubb’s two uses engender a hostile therefore, Liberto has sufficiently in of the made “porch environment. context the severe monkey” lesser to of We the addition judgment to her hostile on further to conclude, claims, that the harassment her belief that was that a Accordingly, we vacate the Liberto’s work enough reasonable render award must serious retaliation showing hostile environment was occurring. summary were retaliation environment claims. claims, We in also need not decide herein whether to embrace the if-repeated standard for cases involving isolated, merely offensive incidents of harassment, because this matter involves more serious conduct. 45 underscore that, on remand, a jury would be entitled to simultaneously reject the hostile work environment claims on the ground that amount Clubb’s to a conduct hostile was not environment, sufficiently but award serious relief on to the retaliation claims by finding that Clubb’s conduct was severe enough to give Liberto a reasonable belief that a hostile environment, although not fully formed, was in progress. 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. J., dissenting). See post at 68-106 (Niemeyer, 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 524 U.S. at 788 (internal quotation marks omitted). that sentence harassment, environment. if to pronounce extremely But, that an serious, clinging to isolated can Faragher’s incident create use We read a of of hostile “isolated incidents” in the plural, the dissent posits that only multiple, “extremely serious isolated hostile work environment.” incidents Post at 88. 46 . . . may produce a 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 71 (quoting Morgan, 536 U.S. at 115), and 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,’” id. at 70 (alteration in original) (emphasis added) (quoting Meritor, 477 U.S. at 67). Strikingly, the dissent does not — and surely cannot — explain what differentiates “isolated incidents” that must be “extremely serious,” from pervasive.” “individual acts” that may be “severe or The dissent also quotes from Morgan that “‘a single act of harassment may not be actionable on its own,’” id. at 71 (quoting Morgan, 536 U.S. at 115), without acknowledging the obvious import “cannot.” of And, Morgan’s the dissent use of itself “may not” allows rather that a than single, isolated incident of physical violence may be actionable, id. at 88, without even attempting to reconcile that proposition with its reading of Faragher. Relatedly, the dissent criticizes us for “fail[ing] to note that the portions of Faragher to which [we] cite[] were part of the Supreme Court’s much lengthier discussion — and substantively different message — describing the type of conduct 47 that would not violate Title VII.” Post at 69. 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, observation, which the “Mere engenders dissent utterance offensive repeatedly of an feelings invokes ethnic in an or Faragher’s racial employee epithet would not sufficiently alter terms and conditions of employment to violate Title VII.” See Faragher, 524 U.S. at 787 (internal quotation marks omitted). But the dissent overemphasizes the first part of that sentence, at one point quoting the entire sentence while underscoring only “[m]ere utterance of an ethnic or racial epithet,” see post at 69, and at another point actually omitting the phrase “which engenders offensive feelings in an employee,” see id. at 88. Of course, the phrase “which engenders offensive feelings in an employee” is a critical qualifier, signifying “a mere offensive utterance” rather than a more egregious slur that is “physically threatening or humiliating.” See Faragher, 524 U.S. at 787-88 (explaining that the circumstances relevant to determining “whether an environment is sufficiently hostile or abusive” include “‘whether it is physically threatening or humiliating, or a mere offensive utterance’” (quoting Harris, 510 U.S. at 23)). 48 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.” post at 88-89. See 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 supervisor.” Id. at 89. Regardless of what else Liberto perceived about Clubb’s status, however, there is ample evidence in the record showing that Liberto reasonably believed that Clubb possessed the one supervisory power that mattered: the power to follow through on her threats to have Dr. Berger rubber-stamp Liberto’s discharge. 7 7 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 84-85 (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 (Continued) 49 As for the retaliation claims, the dissent accuses our en banc majority of “gratuitously proceed[ing] to adopt an unprecedented standard . . . that is much broader than necessary to resolve Liberto’s claim[s].” Post at 93. The dissent’s accusation rests on 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. 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 Liberto.” See post at 86 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 56-58 (Wilkinson, J., concurring in part and dissenting in part, joined by Agee, J.). 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. 50 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 See post at 99. racist comment to his supervisors.” 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.” implicated solely See when post an at 93-94. employee Our suffers standard retaliation is for engaging in an oppositional activity, and can be satisfied only by showing the objective reasonableness of the employee’s belief that an isolated threatening or prediction that incident humiliating. our “standard of We harassment also will 51 reject surely was the generate physically dissent’s many new questions” and “much hand-wringing” over which harassing conduct qualifies as sufficiently severe. See id. at 96, 105. Judges and juries have been identifying what is humiliating, as well as what is physically threatening or merely offensive, since at least 1993, when the Supreme Court explained in Harris how to determine whether a workplace is objectively hostile or abusive for purposes of a hostile environment claim. See 510 U.S. at 23. 8 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 98, 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 harassment do, to Liberto occur — should but not 8 have so waited much for harassment additional that the 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 55 (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 racebased comment that she reasonably believes to be physically threatening or humiliating, we might somehow silence or segregate the workforce. 52 Clarion could avoid vicarious liability because of a lack of timely notice. Concomitantly, the dissent contends that our decision “manifests a fundamental assuming that, a humiliating once distrust epithet of is employers, 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 105. 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 unaware in that regard harassment is occurring. only if they are that 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 employers without exposing themselves to retaliation. 53 from their 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 54 WILKINSON, Circuit Judge, with whom AGEE, Circuit Judge, joins, concurring in part and dissenting in part: The remarks alleged in this Title VII 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, that prevent our larger society from becoming the place of welcome it needs to be. 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. 55 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 BoyerLiberto’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 BoyerLiberto’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 employer other result liability would stretch the breaking past the notion point. of There vicarious 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 co-worker’s unlawful harassment if “the employer was negligent with respect to the offensive behavior.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). But while the majority tries to make it appear as though some other evidence of employer malfeasance may be somewhere in the offing, see Maj. Op. at 35 n.4, its opinion 56 is wholly focused on the two incidents and remarks at issue and intent on directing a trial where the element of imputed employer liability has not been placed genuinely in dispute. Whatever hazy ground Clubb may occupy between co-worker and supervisor, remarks number the made in hazards by the of mid-level hundreds imposing workers or even employer in liability workforces thousands that pushes for might 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, 548 U.S. 53, 67-68 (2006). In this case, there were roughly seventy-five people in the hotel’s food and beverage department alone. J.A. 135. 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, 524 U.S. 775, 788 (1998) (rejecting employer liability for “the sporadic use of abusive language, gender-related jokes, and occasional teasing” (citation and quotation marks omitted)). We may assuredly expect the arrival of workplace speech codes, which, if not already 57 present, will not be long in coming. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (noting that Title VII was not meant to be “a general civility code for the American workplace”). Such a heavy employer hand is a high price to pay for the majority’s holding, and it is one that is not congruent with Supreme Court rulings or consistent with our freedoms. 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. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curiam) (applying the objective standard); EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005). Under that a the circumstances hostile work presented environment here, existed or Liberto’s was belief coming into existence was objectively reasonable. The words alleged to have been spoken by Clubb were abhorrent. Moreover, Clubb uttered the epithet Liberto. on separate And the occasions entire and course directed of conduct it personally surrounding at 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 58 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, 524 U.S. 775, 806-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998). Employers are due adequate notice so that they may head off both the hostile work environment and any resultant liability. Employees benefit when an emergent hostile work environment is nipped in the bud. 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, employers 133 have S. Ct. become 2517, twice 2531 as (2013). likely to Perhaps American retaliate against employees since 1997, but I doubt it. One cause of the dramatic increase of retaliation claims may very well be a sub voce chipping away at the objectively reasonable belief standard. See Id. at 2531-32 (suggesting that 59 “lessening the causation standard” for retaliation claims “could also contribute to the filing of frivolous claims”). The majority’s approach may very well “raise the costs, both financial and reputational, on an employer” where there is no true objectively reasonable belief in the existence of a hostile workplace. Id. at 2532. 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 warrant discussion: the trammeling of free speech and the construction of workplace barriers between the races and sexes. A. If courts reasonable lessen belief in their a insistence hostile on an environment and objectively 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 socializing Oncale v. that in courts the Sundowner and juries workplace” Offshore for do not mistake actionable Servs., Inc., ordinary discrimination. 523 U.S. 75, 81 (1998). The same is true for retaliation claims. People will -- and should –- discuss controversial matters at work. Some of those subjects may well pertain to race and 60 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, 403 U.S. 15, 25 (1971). The premise of the First Amendment is that we as a people not leap quickly to suppression, see Texas v. Johnson, 491 U.S. 397, 414 (1989), which may well occur if reportage and punishment for mere speech is an omnipresent possibility. 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 predicating are one liability thing. on The remarks. greater Not danger here, lies because in Clubb’s language, to say the very least, played “no essential part [in] any exposition of ideas.” Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942). uncomfortable But workplace deemed actionably “[t]o justify there speech hostile. suppression will that It has of be cannot many always free on been speech instances that the there of basis case must be that be reasonable ground to fear that serious evil will result if free speech is practiced.” Whitney v. California, 274 U.S. 357, 376 61 (1927) (Brandeis, J., concurring) (emphasis added). A central “function of free speech under our system of government is to invite dispute.” Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). Unless the “evil” is “imminent . . ., the remedy to be applied is more speech, not enforced silence.” Whitney, 274 U.S. at 377 (Brandeis, J., concurring). More speech means insensitive expression in the workplace should be countered and denounced as such. But the bedrock meaning of the First Amendment will be lost if the expression of disfavored or objectionable positions on sensitive and volatile issues become subjects of reportage and sanction. If every co-worker becomes a potential informant, does this environment not in time come to resemble societies other than our own? 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 decision-making among is a themselves. matter the Collective First discourse Amendment holds and dear. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (noting that “the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power competition of the thought of the market”). to I 62 get agree itself with accepted the in majority the that “early reporting [is] vital to achieving Title VII’s goal of avoiding harm.” Maj. Op. at 39. But the majority nowhere acknowledges the dangers of over-reporting. It drifts ever so casually toward draconian consequences for mere utterance and speech. Such blindness to First Amendment values bespeaks a lack of faith in lateral discussions which would no doubt lead nowhere in the case of Clubb and plaintiff, but which may be far preferable to hair-trigger reporting in working out the squares. John misunderstandings that occur in every workplace. Workplaces in their own way are our town 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 someone in grounds as may a in course perpetuate discussions of first with resort resentment and themselves. or bring on the Turning insubstantial 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, 63 FSB v. Vinson, 477 U.S. 57, 64-67 (1986), and kept in proper perspective, it helps prevent companies from becoming intolerable places for racial, ethnic, and other minorities to work. Hostile environment doctrine has also been judicially developed almost in the manner of federal common law. It would be wrong not to infuse this development with one of the greatest of our enumerated constitutional values, that of freedom of speech. Especially when the speech concerns current affairs or other public Phelps, issues, 131 S. Ct. “believed . . . that Whitney, 274 courts U.S. 1207, public at must take 1215-16 notice. (2011). discussion is (Brandeis, 375 See a J., Snyder The v. framers political duty.” concurring). Civic health requires that Americans not be fearful of their freedoms, whether in public or private venues, and especially a freedom so precious as the exercise of speech. The majority unfortunately takes less than token recognition of this value. It does not herald for future courts the dangers of taking laws are the American workplace down a more autocratic path. B. The objects of civil discrimination, bring barriers. purpose This rights Americans remains together, crucial, and as to eliminate break down Congress has repeatedly attested. And yet our schools are resegregating. Our neighborhoods in all too many instances are very far apart. The 64 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 VII guards against this. Title VII will be counterproductive, however, if it countenances workplaces over-reliant on employee surveillance and reportage. Such a system erects barriers rather than dismantles them. In an ideal world, the races and sexes would interact spontaneously, in natural and creative ways. There would be no single correct way to behave around, no single correct thing to say to, a worker of another race or gender. We are people -- human beings -- with commonalities far more profound than superficial differences. The “bigots” majority who surely “belittle agrees. racial Yet by minorities,” focusing Maj. on Op. sick at 38 (quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 353-54 (4th Cir. 2006) (King, J., dissenting)), the majority sells the more generous potential of most Americans short. Title VII inhibition when must we not contribute communicate with an those added of element another sex of or race. And yet I fear that is precisely what will happen if the objectively reasonable standard is retaliation protection for report, any diluted in however favor of marginal, trivial, or unsubstantiated. The Supreme Court has made clear 65 that Title VII’s “prohibition of harassment on the basis of sex requires neither Oncale, 523 asexuality U.S. unintentionally at nor androgyny in But where every remark is 81. insensitive the going workplace.” ambiguous to be or reported upstairs, employees naturally will seek to cluster with those who look, act, and think interactive community recognized, understood, will be a more in “like which themselves.” individual celebrated, fractious and and Instead attributes embraced, walled-off working the of an can be result environment where noxious stereotypes persist. Keeping interracial distance and maintaining interracial silence will become the safest course, the easiest way to avoid a blot on one’s record that comes even with a co-worker’s erroneous report. This road is in no one’s interest, certainly not ours as a nation or as individuals in the simple search for friends. We must not become others to ourselves. 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 plaintiff’s 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 66 majority did not do more to recognize that this is an equation with two sides, an area with more than harmony of balance is nowhere to be found. 67 one dimension. The NIEMEYER, Circuit Judge, 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,” opposition against ante, to the her at 44 (emphasis incident employer. added), justified It her reaches such that retaliation these her claim unprecedented conclusions by relying on selected and distilled snippets from Faragher v. City of Boca Raton, 524 U.S. 775 (1998), which, according to the majority, justify the conclusion that “an ‘isolated incident’ of harassment can ‘amount to discriminatory changes in the terms and conditions of employment,’ if that incident is ‘extremely serious,’” ante, at 26 (quoting Faragher, 524 U.S. at 788). Faragher, however, does not support the majority’s reading of it, and precedent. the majority’s First, in the conclusions very are quotation otherwise relied on without by the majority, the Faragher Court noted that “isolated incidents” -68 using the plural -- might, if “extremely serious,” satisfy the severity requirement for racial harassment. 524 U.S. at 788. To rationalize its holding, the majority thus reads the plural “incidents” in Faragher to refer only to a “single incident.” 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. several opinions instance, that from the In that discussion, the Court drew on the “‘mere courts of utterance appeals of an and noted, ethnic or for racial epithet which engenders offensive feelings in an employee’ would not sufficiently alter terms and conditions of employment to violate Title VII.” Faragher, 524 U.S. at 787 (emphasis added) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)); see also Meritor (same). The discrimination racial Sav. Bank, Court law also which sensitivity harassment.” FSB v. Vinson, cited does observed, not, 477 U.S. approvingly in alone, part, to text on “a lack of to actionable Id. (quoting 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 349 (3d ed. 1996)). Court (1986) a that amount 66 summarized some of its earlier paragraph relied on by the majority: 69 rulings Finally, the in the very So, in Harris [v. Forklift Systems, Inc., 510 U.S. 17 (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 a mere 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 construing it. of Title VII Indeed, or the any Supreme Supreme Court Court has decision 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, 477 U.S. at 67 (alteration in original) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)) (internal 70 quotation marks omitted). And because hostile work environment claims by their “very nature involve[] repeated conduct,” the Court has further recognized -- and the majority acknowledges, see ante, at 26 -- that “a single act of harassment may not be actionable on its own.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Instead, such claims must be “based on the cumulative effect of individual acts.” To be absolutely clear, this case Id. 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 whether it. an Nor employee, does this case justifiably present offended the by question being of 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 24hour period, when talking to a fellow employee about a single incident, could transform the thereby objectively workplace effecting a into be a considered racially discriminatory conditions of her employment. so severe hostile change in as to environment, the terms and And if we were to conclude that a reasonable jury would be unable to make such a finding on the 71 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 practice that was made unlawful by Title VII. an employment 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 working Boyer-Liberto, at “Clarion”) the in an Clarion Ocean City, African-American Resort woman, Fontainebleau Maryland, on began (the 2010. August 4, Hotel 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, bartending, and working banquets. including serving, According to Leonard Berger, the Clarion’s owner, Liberto struggled in all of the positions 72 to which she was assigned, and he terminated her employment on September 21, 2010, because she “had failed at four jobs” and “[t]here [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 Beverage Director, as well as Mark Elman, the hotel’s General Manager. Clubb did not participate in hiring decisions, and there is no indication in the record that she was authorized to fire, demote, or otherwise take tangible employment actions against other members of the Clarion’s staff. 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 relationship close with to 20 Berger, years had 73 and power had that a she, longstanding 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, Liberto 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] instruct[]” 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 relationship with Berger to make trouble for Liberto. personal But the incident central to this action occurred more than a month after Liberto had been hired. 74 Late on the night of September 14, Liberto 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] mouth was hitting her. breath” and that spittle from Clubb’s 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 75 speaking with Heubeck, but Clubb responded that she was “more important.” Heubeck’s Liberto and Clubb then sat down at a table outside office, and Clubb scolded [her] station” the previous night. Liberto for “abandoning As this meeting broke up, Clubb said that “she was going to go to Dr. Berger” and “teach [Liberto] a lesson.” Using a raised voice, Clubb again called Liberto a “porch monkey.” A couple of days later, on September 17, 2010, Liberto spoke by telephone with Nancy Berghauer, the Clarion’s Human Resources Director, regarding Clubb. notes Elman. of the conversation and Berghauer made typewritten forwarded them to Berger and 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 Liberto, 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 Liberto’s work file and discovered that Liberto had failed the Clarion’s bartending test “miserably.” When 76 Berger indicated that he thought the Clarion should terminate Liberto’s employment, Elman and Berghauer 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. be there.” The situation will 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 violation Liberto of filed III), Title her and VII two counts (Count Title VII 77 II) of and claims retaliation, § 1981 against also in (Count IV). only the Fontainebleau Corporation, Fontainebleau Hotel, trading but as named the both Clarion the Resort Fontainebleau Corporation and Berger as defendants in her § 1981 claims. Following summary discovery, judgment. the Taking defendants Liberto’s filed a deposition motion testimony for as true, the district court held that the offensive conduct was too isolated to support retaliation. Liberto’s claims for discrimination and 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. The governing principles are well established. Title VII makes it “an unlawful employment practice for an employer . . . to discriminate compensation, because of against terms, such prohibits individual conditions, individual’s national origin.” obviously any or with respect race, privileges color, 78 with respect his employment, religion, 42 U.S.C. § 2000e-2(a)(1). discrimination of to sex, or “This provision to employment decisions that termination, have direct demotion, and economic pay cuts.” Univ., 133 S. Ct. 2434, 2440 (2013). Supreme covers Court ‘terms’ has recognized and consequences, that ‘conditions’ Vance v. such Ball as State Since 1986, however, the this in provision the narrow “not only contractual sense,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998), but also forbids the “practice of creating a working environment heavily charged with . . . discrimination,” Meritor, 477 U.S. at 66 (quoting Rogers, 454 F.2d at 238); see also Harris, 510 U.S. at 21 (1993) (“The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment . . . in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment” (citation and some internal quotation marks omitted)). But in order to ensure that alleged a cause environment is of action justified based by on the an statute’s text, hostile the work Supreme Court has emphasized time and time again that the underlying harassment must be “so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment.’” at 786 (alteration in original) Faragher, 524 U.S. (emphasis added) (quoting Meritor, 477 U.S. at 67); see also, e.g., Vance, 133 S. Ct. at 2441 (“In [hostile work environment] cases, we have held, the plaintiff must show that the work environment was so pervaded by 79 discrimination that the terms and conditions of employment were altered”); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (recognizing that only harassing conduct that is “severe or pervasive” can effect a “constructive alteration[] in the terms or conditions of employment” and thus become “cognizable under Title VII”); Oncale, Title VII’s “prohibition 523 of U.S. at harassment 81 . (emphasizing . . forbids that only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment”); Harris, 510 U.S. at 21 (“When the workplace is 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, Title VII is violated” (citations and internal quotation marks omitted)). This demanding standard thus requires more than “conduct that is merely offensive.” Harris, 510 U.S. at 21; see also Oncale, 523 U.S. at 80 (noting that Title VII will not become “a general civility code for the American workplace” so long as courts pay statute”). recognized “careful attention Indeed, that the the “‘mere to the Supreme utterance requirements Court has of ethnic an of the specifically or racial epithet which engenders offensive feelings in an employee’ would not affect the conditions of employment significant degree to violate Title VII.” 80 to [a] sufficiently Meritor, 477 U.S. at 67 (emphasis added) (quoting Rogers, 454 F.2d at 238); see also Harris, 510 U.S. at 21. Similarly, the Court has stressed that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” 524 U.S. at omitted). 788 (citation and some internal Faragher, quotation marks It should thus come as no surprise that the Court has described the “very nature” of a hostile work environment claim as “involv[ing] repeated conduct.” Morgan, 536 U.S. at 115; see also id. (“The ‘unlawful employment practice’ [at issue in a hostile work environment claim] . . . cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts.” (Citation omitted)). 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, 532 U.S. 268, 270 (2001) (per curiam). Instead, courts must determine “whether an environment is sufficiently hostile or abusive [to support a claim] by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or 81 humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23). 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 case falls outside the heartland of hostile work environment claims, the “very nature [of which] involves repeated conduct.” Morgan, 536 U.S. at 115. the juncture only question at this is whether a Instead, jury that believed Liberto’s description of events could find that Clubb’s conduct was so severe that it altered the terms and conditions of Liberto’s employment by creating a work atmosphere that was objectively racially hostile. The answer is plainly no. To be sure, the term “porch monkey” is an odious racial epithet, and any reasonable person in Liberto’s position would of course be offended by its use. But the “‘mere utterance of an ethnic or racial epithet,’” which offends an employee, does not “affect the conditions of employment degree to violate Title VII.” to [a] sufficiently significant Meritor, 477 U.S. at 67 (quoting 82 Rogers, 454 F.2d at 238); see also Harris, 510 U.S. at 21. short, Liberto has not presented evidence from In which a reasonable jury could find that her workplace was “permeated with ‘discriminatory intimidation, ridicule, and insult’ that [was] ‘sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.’” Harris, 510 U.S. at 21 (citation omitted) (quoting Meritor, 477 U.S. at 65, 67). The majority’s conclusion to the contrary distortions, one factual and one legal. rests on two First, the majority brazenly distorts the facts contained in the summary judgment record regarding Liberto’s understanding of Clubb’s role at the Clarion. does The majority begins by stating that the current record not supervisor added). been establish “whether or her simply Clubb co-worker.” was actually Ante, at 30 Liberto’s (emphasis But nonetheless it then proceeds to “deem Clubb to have Liberto’s supervisor” for the purpose of “gauging the severity of Clubb’s conduct,” ante, at 32, on the theory that Clubb portrayed herself as having the ability to get Liberto fired by taking advantage of her friendship with Berger. From this, the majority goes yet further and presumes that Liberto must have believed that Clubb was effectively her supervisor, thus lending a “particularly threatening character” to Clubb’s 83 conduct. Ante, at 32 (quoting Ellerth, 524 U.S. at 763) with the (internal quotation marks omitted). There are, however, majority’s approach. who may result have of authority to influence personal take significant problems First, it is highly doubtful that Clubb, wielded a two on the relationship tangible Clarion’s but owner lacked actions employment who or as a direct 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.” 133 S. Ct. at 2439 (emphasis added). explained that employee’s this definition supervisory status In so holding, the Court would to generally by written documentation.” Vance, typically be “readily allow an determined, Id. at 2443; see also id. at 2449 (“The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied”). The Court indicated that employees can still qualify as supervisors even if their “decisions management.” individuals ability to [are] subject Id. at 2446 n.8. vested with exercise to approval by higher It similarly noted that if the decisionmaking independent 84 power “have discretion a limited when making decisions” and must instead “rely on [the recommendations of] other workers who actually interact with the affected employee” then “the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations [the individual decisionmaking authority] relies.” those situations influence comes are a from far having cry formally vested Id. at 2452. But both of from an employee ear the with of the whose only company’s owner because of their personal friendship. Moreover, even assumption that supervisor flies setting Liberto in testimony about her Clarion’s must the hierarchy. that issue have face of understanding When asked aside, perceived Liberto’s the Clubb own of Clubb’s about her majority’s as her deposition place in the 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.” added, “I was told by everyone, oh, just, you know, She 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. 85 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 make decisions. I had to report to Jamie or Richard [Heubeck]. And at the time [Clubb] did not hold any management cards or keys as Jamie did. (Emphasis added). to listen to And when asked whether she “thought [she] had [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 ∗ In support of its dubious contention that Liberto 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 10. 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 4 n.1. And Liberto’s testimony contradicts Elman’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. 86 Clubb as a substantially “glorified hostess” lessens the who impact everyone that “humor[ed]” Clubb’s isolated statements could have had on Liberto’s work environment. See ante, at 27 (“[A] supervisor’s use of [a racial epithet] impacts the work environment far more severely than use by co-equals” (second alteration in original) (quoting Rodgers v. Wis. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)) (internal quotation marks omitted). In addition to relying on a blatant mischaracterization of Liberto’s majority’s understanding conclusion of Clubb’s that role Liberto’s at the hostile Clarion, work the environment claims should reach a jury also rests on a faulty interpretation of a handful of words from the Supreme Court. majority places a great deal of Specifically, the 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.’” 524 U.S. at 788 (emphasis added) (citation and some internal quotation marks omitted). holding, conclusion distilled that to this its is essence, “the type Indeed, the majority’s rests of case entirely on contemplated its in Faragher where the harassment, though perhaps ‘isolated,’ can properly be deemed to be ‘extremely serious.’” 87 Ante, at 34. But in Faragher, the Supreme Court referred to “incidents,” 524 U.S. at 788, not to a single incident. And five years later, the Court in Morgan confirmed that “repeated conduct” is the stuff of a hostile (emphasis added). work environment. 536 U.S. at 115 Moreover, while the Faragher Court did not elaborate on what it envisioned as the kind of extremely serious isolated incidents that may produce a hostile work environment, we know from Meritor and Harris that such incidents cannot be the “mere utterance of an ethnic or racial epithet.” 477 U.S. at 67 (quoting Rogers, quotation marks omitted). 454 F.2d at Meritor, 238) (internal As the Court has made clear, the making of such a statement in the workplace, although highly offensive, “does not sufficiently conditions of Harris, 510 U.S. at 21. employment to implicate Title VII.” affect the It is true that Clubb’s alleged conduct was reprehensible. But it involved no physical assault or threat of physical harm. Cf. 3 Lex K. Larson, Employment Discrimination § 46.05[3][b], at 46-82 (2d ed. 2012) assault (noting against [discriminatory] constitute an employment”). a that “a single co-worker animus can alteration that qualify of the incident is as of physical motivated severe co-worker’s by enough to conditions of Moreover, even though the first encounter took place in a crowded dining room, it appears that no one heard Clubb direct the epithet at 88 Liberto on either occasion, indicating that the name-calling was not publicly humiliating. And again, Liberto thought that she was being upbraided by a coworker, not her supervisor. Taken together, these considerations show that, as a matter of law, Clubb’s alleged conduct did not amount to the “extremely serious” “isolated incidents” that the Faragher Court envisioned as being capable of effecting a “discriminatory change[] conditions of [the plaintiff’s] employment.’” in the ‘terms and 524 U.S. at 788. 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 incident. most, See two repeated ante, at statements 34. What relating the to majority a single 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., 754 F.3d 1240 (11th Cir. 2014), and the D.C. Circuit’s decision in Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013). But both cases involved conduct more See ante, at 33-34. pervasive and/or more severe than that alleged by Liberto here. In Adams, one of the plaintiffs alleged that his supervisor carved the slur “porch monkeys” into the aluminum of the ship on 89 which they were working, and the Eleventh Circuit observed that that “isolated act” was “severe.” 754 F.3d at 1254. But the same plaintiff also alleged that he “saw one coworker wear a shirt with a Confederate flag”; that he “regularly saw racist graffiti in the men’s restroom”; and that when he reported the racist graffiti, his supervisor responded by saying that “it’s always been like that and if [he] didn’t like it [he could] quit.” Id. at 1253 (alterations quotation marks omitted). allegations that the in original) (internal It was based on the totality of these Eleventh Circuit concluded that “the harassment [the plaintiff] experienced was frequent and severe,” such that “[a] reasonable jury could environment was objectively hostile.” find that [his] work Id. at 1253-54 (emphasis added). Similarly, the harassment in Ayissi-Etoh was both pervasive and more severe than the harassment at issue here. more 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. 712 F.3d at 574-75. young have your expertise; I think I’m already paying you a lot of money.” Id. at black 575 man In response, the Executive told him, “For a (internal smart like quotation you, marks we are happy omitted). to Several months later, the plaintiff was discussing his work responsibilities 90 with the company’s Vice President of Internal Audit when the meeting “became heated” and the Vice President yelled at him, “Get out of my office nigger.” Id. Although the plaintiff missed work and was diagnosed with an anxiety disorder, he was forced to continue working with the Vice President during the ensuing three-month investigation. Id. Based on this evidence, the D.C. Circuit held that the plaintiff was entitled to a jury trial on his circumstances hostile in work Ayissi-Etoh those presented here. environment are readily claim. These distinguishable from First, as the court in Ayissi-Etoh noted, the hostile work environment was precipitated not by a single event, but different rather by two high-ranking indisputably supervisors independent company of the statements officials who plaintiff. Id. made by were at two both 577-78. Those statements ultimately led to psychological problems and directly caused the plaintiff to miss work. Id. at 577. Second, the racist comments were made during conversations about the plaintiff’s pay and work assignments, thus increasing the statements’ ability to “alter the conditions of the victim’s employment.” Harris, 510 U.S. at 21. By contrast, in the case at hand, (1) there was only one incident involving one alleged harasser; (2) the alleged harasser was perceived by the plaintiff to be a “glorified hostess” with no “power to . . . make decisions”; and (3) although the alleged harasser denied 91 making the offensive statement, the employer promptly issued her a written reprimand, warning her “to be cautious [that] the language or phrases [that] she uses can not [sic] be perceived as racist or derogatory.” 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 Liberto’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. Glass, 242 F.3d 179, 184 See Spriggs v. Diamond Auto (4th Cir. 2001) (recognizing that hostile work environment claims under Title VII and § 1981 are governed by the same principles). III 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 92 opposes any practice made an unlawful practice by Title VII and therefore is subjected to an adverse employment action. See ante, at 36. The majority could have ended its retaliation claim analysis without saying more. But it did not. unprecedented Instead, it gratuitously proceeded to adopt an standard for retaliation claims that broader than necessary to resolve Liberto’s claim. is much In doing so, it also unnecessarily overruled part of our decision in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006). A As to its new, broad standard for retaliation claims, the majority moves far beyond the scope of any statutory language or any Supreme employee Court opposes precedent a single to conclude offensive that, even incident, when an she has “a reasonable belief that a hostile work environment is occurring” whenever the incident is humiliating. ante, at 44-45. Ante, at 43; see also Applying that standard, the majority concludes that because “‘porch monkey’ is a racial epithet that is not just humiliating, extreme,’” Liberto but ‘degrading and humiliating was necessarily opposing a in hostile the work environment that was “in progress” when she brought the racial slurs to management’s attention. 242 F.3d at 185). holding will Ante, at 45 (quoting Spriggs, Undoubtedly, this gratuitous and untenable generate widespread 93 litigation over the many offensive workplace comments made everyday that employees find to be humiliating. 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 maintenance of a racially hostile work environment. § 2000e-3(a)’s language generously to give employer’s And reading 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, 424 Supreme F.3d Court 397, has not 406-07 yet (4th gone Cir. so 2005), far. although Specifically, the in Breeden, 532 U.S. at 270, the Court declined “to rule on the propriety of [the Ninth Circuit’s] interpretation” of § 2000e3(a) as “protect[ing] employee ‘oppos[ition]’ not just to practices that are actually ‘made . . . unlawful’ by Title VII, but also to practices that the employee could reasonably believe were unlawful,” “because even assuming [that its interpretation] is correct, no one could reasonably believe that the incident 94 [at issue] violated Title VII.” further, recognizing retaliation if, at that the Finally, we have gone one step an time employee of her is protected complaint, she from had “an objectively reasonable belief in light of all the circumstances that a Title VII violation has happened or is in progress.” Jordan, 458 F.3d at 341 (emphasis added). Under the relates to require the Jordan another standard, employee’s harassment to when an harassing have already employee’s conduct, risen complaint we to do the not 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 [would] continue or [would] be repeated unabated.” F.3d at 341. conduct Jordan, 458 Instead, we held that in this incipient stage, a plaintiff must be able to point to evidence that “reasonably supports the inference” that the conduct being objected to was “likely to recur at a level sufficient to create a hostile work environment.” Id. In other words, for an employee’s report of objectionable conduct that has not yet become unlawful under Title VII to qualify as protected activity, the employee must, at the very least, have an objectively reasonable belief that a 95 hostile work environment would result, “based on circumstances that the employee observes and reasonably believes.” Id. 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 43-45. This new standard will surely generate many new questions about which offensive workplace comments are objectively humiliating and lead to an expansion of litigation far beyond Title VII’s design. I would correctly conclude entered in this summary case judgment that the district court 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 Resources Director. Clubb’s conduct to the Clarion’s Human 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 Liberto 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 96 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 because of their race. F.3d 1209, 1214 has become abusive to employees Cf. Butler v. Ala. Dep’t of Transp., 536 (11th Cir. 2008) (“[N]ot every act by an employee in opposition to racial discrimination is protected. The opposition practice of must an be directed employer, not an at an unlawful employment act of discrimination by a private individual” (emphasis added) (quoting Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir. 1997)) (internal quotation marks omitted). 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. record Liberto has not identified any evidence in the 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 tolerate such conduct or permit it to recur. co-workers would 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. 97 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 42 U.S.C. § 2000e-3(a). [Title VII].” 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 “oberserv[ing] that the district court improperly analogized this matter . . . to Jordan,” the majority instead confirms that “a racist remark that was made by 98 a mere co-worker and not aimed at [the plaintiff] or any other employee” does not amount to a hostile work environment. at 35. Ante, Nor does the majority 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. Rather, the only portion of Jordan that the majority overrules is its already liberalizing rule that a plaintiff whose retaliation claim is based on an objectively reasonable belief that a hostile work environment was in progress, but not yet in existence, need only point to some evidence indicating that such an environment was “likely to occur.” The Jordan, 458 F.3d at 340; majority incompatible with claims see ante, at 38. that Crawford this [v. aspect of Metropolitan Jordan “is Government of Nashville & Davidson County, 555 U.S. 271, 279 (2009)], as well as other Supreme antiretaliation Court decisions provision be protection from retaliation.’” directing interpreted that ‘to Title VII’s provide broad Ante, at 41 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). An analysis of these cases, however, belies the notion that they are in tension with Jordan or that, with these decisions, the Supreme Court has given us license to provide employees with “broad[er] protection from retaliation” than the text of the statute justifies. 99 For example, Crawford resolved the narrow question of whether “an employee who speaks out about discrimination not on her own initiative, employer’s internal employment practice but employee had answering investigation” within retaliation provision. an in the questions has opposed meaning of 555 U.S. at 273. engaged in Title during an an unlawful VII’s anti- In holding that such protected activity, the Supreme Court’s analysis focused on the “ordinary meaning” of the term “oppose,” leading the Court to conclude -- as a matter of statutory interpretation -- that “[t]here is . . . no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.” Id. at 276-78. in this holding is “incompatible” with Jordan. Similarly, “Title VII’s employer the issue in antiretaliation actions and Cleary, nothing Ante, at 41. Burlington Northern provision forbids resulting harms that are was whether only those related to employment or the workplace,” as does the statute’s substantive antidiscrimination provision. that question language in in the the 548 U.S. at 61. negative, the antidiscrimination 100 Court In answering emphasized provision that “explicitly limit[s] the scope of that provision to actions that affect employment or alter the conditions of the workplace,” whereas “[n]o such limiting provision.” words Id. at 62. appear in the antiretaliation The Court further reasoned that the difference between the two provisions’ purposes confirms “that Congress intended the differences that its language suggests.” Id. at 63. view that It was on this basis that the Court rejected the it would be “‘anomalous’ to read the statute to provide broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, discrimination.” ethnic-based, Id. at 66. religion-based, or gender-based As such, despite the majority’s suggestion to the contrary, Burlington Northern does not stand for the proposition that courts must always adopt the broadest possible construction of Title VII’s antiretaliation provision, and it certainly does not authorize courts to afford plaintiffs protection beyond what the statute itself provides. 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 38. 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 101 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 39. one. First, enables an The majority’s dilemma, however, is a false the Ellerth/Faragher employer supervisor’s to of creation avoid a affirmative vicarious hostile work defense liability environment only for its 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, 524 U.S. at 765 (emphasis added); see also Faragher, 524 U.S. at 807. It is highly doubtful, however, that an employer would be able to show that an employee acted unreasonably by choosing not to immediately report an isolated incident of workplace misconduct that was not in itself sufficient to give rise to a reasonable belief that a hostile work environment was in progress. Cf. Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 270 (4th Cir. 2001) (holding that the employer had established the affirmative defense because, “[i]n light of th[e] long-term and persistent harassment, [the plaintiff] cannot be excused from failing to report [her supervisor’s conduct]” sooner (emphasis added)). Second, the majority 102 combines the qualitative requirement of objective reasonableness in reporting harassment with the laches Faragher, 524 concept U.S. at described 807, and by the developed Supreme by this Court in court in Matvia, 259 F.3d at 270, in order to invent a fictitious Catch22. In actuality, an employee only risks retaliation by reporting too early when there is insufficient conduct about which to complain under Title VII, and she only risks dismissal of her claim for reporting too late when she inordinately delays coming forward. More to the point, however, it is not the role of this court conduct to incentivize where the Congress early itself has reporting not seen of objectionable 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, 532 U.S. at 269-71 (holding that an employee did not engage in protected activity when she complained that, during a meeting, her supervisor read aloud a sexually explicit statement, which a job applicant had purportedly made, before looking at her and stating, “I don’t know what that means,” and then chuckling along with a male employee who offered to explain the comment to him later). Instead, Congress chose to protect only employees who have “opposed any practice made an unlawful 103 employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). We have already liberally interpreted this provision to protect employees who possess an objectively reasonable belief that they are complaining about a Title VII violation that has occurred or is in progress, a standard that serves to protect employees in close cases. incident But of inevitably we cannot racially ripen environment, charged into lest simply an our presume workplace actual a single misconduct racially interpretation untethered from Title VII’s text. that hostile become will work completely Instead, a plaintiff whose retaliation claim is based on an objectively reasonable belief that she was opposing a hostile work environment that was in the process of developing must be able to point to some evidence that supports the inference that such an environment was “likely to occur.” Jordan, 458 F.3d at 340 (emphasis added). 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. consideration problems. of this new Ante, at 44-45. per se rule Even a cursory quickly reveals An isolated incident of humiliating harassment is, of course, more serious than “a mere offensive utterance.” 510 U.S. at 23. of its humiliating Harris, But it is far from clear why a single incident harassment that is 104 insufficient to support a reasonable belief that a hostile work environment had come into existence would nonetheless give rise to a reasonable belief that a hostile developing. instance work environment was in the process of The majority must be assuming that, if a single of objectionable humiliating conduct is harassment bound to has be occurred, repeated at sufficient to create a hostile work environment. course, does wringing in particular not the follow. legal incident And I community qualifies as can when level But this, of anticipate much determining humiliating a then or hand- whether whether a it remains merely an offensive utterance. The majority’s position is also entirely pessimistic about the ability and desire of employers to stop the progression from isolated utterances environment. Indeed, of racial the slurs majority to a manifests hostile a work 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. 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, 105 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. presumption is jurisprudence, at odds and with the Title fundamental VII, the character Supreme of This Court’s employers in America’s modern workplace. IV At bottom, I would conclude, as did the district court, that while offensive, Clubb’s they were comments made to in Liberto were unacceptably 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 was in progress, Liberto’s retaliation claims also fail. 106 Thus, I would affirm.
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