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Fourth Circuit changes standard for retaliation claims



By Laura Mallory

The U.S. Court of Appeals for the Fourth Circuit recently overruled one of its own prior decisions by finding that Title VII’s anti-retaliation provision still protects a plaintiff from complaining about harassment, even if the complained about conduct is not considered a hostile work environment.

Plaintiff, a waitress at a hotel located in Ocean City Maryland, claims that on consecutive nights, another employee called her a “porch monkey.” In addition to the racial epithets, plaintiff alleges that she was yelled at and harassed. Shortly after the reporting of this behavior, she was terminated. Plaintiff filed a lawsuit alleging a hostile work environment and retaliation pursuant to Title VII.

Title VII claims

In order for a plaintiff to be successful in her hostile work environment claim, she must show she was subjected to unwelcomed conduct, based on her race, which was sufficiently severe or pervasive to alter her conditions of employment. The conduct must create an abusive work environment which is imputable to her employer. A retaliation claim requires different showings. In order for plaintiff to succeed on her retaliation claim against her employer, she must show that she engaged in a protected activity and her employer took an adverse employment action based on her protected activity.

Lower court decision

In a prior decision by the same appeals court, in a case with similar facts, a plaintiff was subjected to one incredibly derogatory comment. That plaintiff complained about the remark, was subsequently fired, and later brought suit.  The appeals court held that because offhand comments and isolated incidents do not amount to an actionable claim, the plaintiff there did not engage in protected activity, and thus that the retaliation claim necessarily failed. Based on that prior decision by the appeals court, the lower court in this case found in favor of the employer. The plaintiff then filed an appeal.

Reversal of precedent

On appeal, the Fourth Circuit held that its prior precedent, which stood for the proposition that complaining about an isolated incident of harassment was not protected, must be rejected. The court noted that the prior decision stands at “odds with the hope and the expectation that employees will report harassment early,” instead of waiting for the harassment to continue and rise to an actionable level.


This decision effectively changes the standard for retaliation claims under Title VII in the jurisdictions covered by the U.S. Court of Appeals for the Fourth Circuit. Moving forward, courts in those jurisdictions will focus on the severity of the harassment when assessing the reasonableness of an employee’s belief that a hostile environment exists.




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