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Clarifying the Hostile Work Environment Claim with Regard to Isolated Racial Slurs

Often, the threshold for hostile work environment claims is unclear and, while case law may partially delineate actionable from non-actionable claims, courts must often determine the threshold based on reasoning and public policy considerations. Though derogatory remarks often come into play as part of a hostile work environment claim, the burden for such a claim based on verbal remarks alone is high.

Though derogatory remarks will certainly factor into a court's analysis of a hostile work environment claim, the established view is that a few isolated derogatory remarks will not alone suffice. Last year, the Fourth Circuit's holding in Boyer-Liberto v. Fontainebleau Corporation helped clarify the relationship between derogatory remarks and hostile work environment claims, providing that two instances of racial slurs alone does not amount to a hostile work environment.

In this case, it is noted that the plaintiff employee had some performance issues at her job. After two instances of being called a "porch monkey" by her co-worker, she complained to HR on the day of the second instance. On the same day, her supervisor and the business owner addressed the conflict with her and also confronted her about her poor performance. The plaintiff was terminated about a week later, allegedly due to poor performance.

Though the plaintiff claimed that the termination was retaliatory, in response to her complaint about the racial slurs, the court did not find a sufficient nexus between the complaint and the termination. Additionally, the court held that the co-workers conduct alone did not create a workplace "permeated with discriminatory intimidation." Therefore, the plaintiff was unsuccessful in her claims for discrimination and retaliation.

Though California labor laws generally provide broad protection to employees, Boyer-Liberto emphasizes the idea that isolated instances alone are normally not enough to support a hostile work environment claim.