What Employers and HR Departments Must Do After the Boyer-Liberto Harassment Decision

When the U.S. Court of Appeals for the Fourth Circuit held, in Boyer-Liberto v. Fountainebleau, that, “one or two uses of a racial slur could be ‘severe’ enough for a harassment issue to go to the jury,” the employment law community seemed to be shaken. What did this mean for employers? Should they begin to tremble in fear of a flood of oncoming litigation? The short answer, it seems, is no.

Boiled down, the Boyer-Liberto decision held (a) an employee’s complaint about harassment in the workplace can be legally protected even if the harassment has not reached the severity level required for a harassment claim and (b) that a harasser may be a supervisor for purposes of harassment lawsuit if he or she is in the position of influence. So what does this mean for your business? Practically, the decision does not change any of the preventative and effective remedial action employers ought to be focused on anyways.

Training Must be Current

First, employers must keep harassment training up to date to ensure supervisors and employees are aware of proper and improper conduct as well as what they must do to report improper conduct. With regards to racial slurs, before Boyer-Liberto, the [rather obscure law] held that only those employees who had been called a racial slur three times were considered to have met the threshold to bring a harassment claim. After the decision, even one or two incidents of employees being called a racial slur may be cause to bring a claim. This means employers may have a harder time raising the “this only happened once” defense, but will still be able to defend by showing they took reasonable steps to prevent harassment, such as establishing and maintaining anti-harassment policies.

Employers Must Act Appropriately

Second, employers must appropriately react to all complaints about harassment in the workforce. As stated above, before Boyer-Liberto, if a company’s HR did not take a complaint seriously the first time, they could rely on the fallback defense that a particular incident was a one-time case. Now, employers will have a more difficult time raising this fallback defense, but will be able to defend by showing proper reaction to HR complaints. This means your company’s HR department must be diligent and avoid delay in investigating each complaint.

Training Must Include All People of “Influence”

Lastly, employers must train any employee who could reasonably be perceived as being in a position of influence, even if that individual does not have independent power, in the same manner as managers. In Boyer-Liberto, the court clarified that a company will be vicariously liable for the actions of its supervisors and defined a “supervisor” essentially as anyone who could reasonably be considered to be a supervisor. Therefore, if team leaders, project supervisors, or even an individual who claims to have clout could be seen as a supervisor, it is imperative for employers to train these individuals so they do not engage in action that would incur liability on behalf of the company.

Thus, in practice, the Boyer-LIberto decision should not make employers quiver in fear–it should, however, remind them that prevention and immediate follow-up to complaints are key to defending harassment cases.