By Eric B. Meyer
That is, while not condoning President Clinton’s actions, Steinem concluded that one touching is not sexual harassment — at least as a matter law.
Well, this week the Fourth U.S. Circuit Court of Appeals, based in Richmond, VA., saw Steinem’s “one-free-grope” rule and raised her a “two-free-slurs” rule.
A single incident CAN be held as harassment
In Boyer-Liberto v. Fontainebleu Corp., a black plaintiff alleged that her co-worker referred to her as a “porch monkey” twice in two days, from which she claimed to have been subjected to a racially hostile work environment.
The United States Court for the District of Maryland disagreed.
On appeal, the Fourth U.S. Circuit Court of Appeals noted that “the ‘porch monkey’ term … was indeed racially derogatory and highly offensive, and nothing we say or hold condones it.”
Now, before I discuss the Fourth Circuit’s opinion, I note that, in some states, like New Jersey for example, a single slur create a hostile work environment. And Steinem’s “one grope rule” notwithstanding, a New York court noted that a single incident — albeit a forcible kiss — could be enough to demonstrate actionable sexual harassment.
What the court had to say
But those opinions are further up I-95. Further south, not only is a single slur hardly enough to create a hostile work environment, but, according to the Fourth Circuit, neither are two racial epithets:
A single racist statement [is] a far cry from alleging a [hostile work] environment of crude and racist conditions so severe or pervasive….[And] “a coworker’s use of [porch monkey] twice in a period of two days … as a matter of law, [is not] so severe or pervasive as to change the terms and conditions of [a black plaintiff’s] employment so as to be legally discriminatory.”
But, look folks, as I’ve said before, even if a single incident (or two incidents) is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you’ll have to spend valuable time, money, and resources defending.
So, don’t condone this behavior in your workplace — ever.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.