Josh Van Kampen Quoted in Law360 Article on the 4th Circuit Ruling on Retaliation Claims

Law 360 - Josh Van KampenA Fourth Circuit decision reviving a lawsuit by a black cocktail waitress, who said she was subjected to racial slurs and then fired after complaining, set a new and more employee-friendly standard for Title VII retaliation claims and will make it tougher to get similar cases tossed, lawyers said. A healthy majority of the en banc Fourth Circuit erased a summary judgment win for Fontainebleau Corp., ruling May 7 that hostile work environment and retaliation claims from Reya C. Boyer-Liberto — a former waitress at an oceanfront hotel in Maryland — should go to a jury.

The Fourth Circuit judges split 12-3 on the hostile work environment claim and 14-1 on the retaliation prong. The lone dissenter on the retaliation claim was Judge Paul Niemeyer, who authored a 2006 panel ruling in a case called Jordan v. Alternative Resources Corp., which was panned by the majority in the Fontainebleau case.
Neimeyer’s dissent warned that the May 7 majority holding would “generate widespread litigation over the many offensive workplace comments made everyday that employees find to be humiliating.” But both management-side and plaintiffs’ lawyers said they didn’t expect it to lead to a spike in claims.

“I think that’s hilariously wrong, because proving employment discrimination in federal court is one of the hardest things you can undertake,” Josh Van Kampen, founder of Charlotte, North Carolina-based plaintiff’s employment firm Van Kampen PC, said of Judge Niemeyer’s “widespread litigation” forecast. “There’s not going to be a rush to the courthouse all of a sudden because the standard for hostile work environment or protected activity has been moderated.”

But what the Boyer-Liberto ruling will likely translate to are denials of employer bids for summary judgment, Van Kampen added.

Management-side lawyers agreed that the place where the Boyer-Liberto ruling would have an effect is at the summary judgment phase of hostile work environment and retaliation cases within the Fourth Circuit, which takes appeals from nine federal trial courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina.

The May 7 ruling will make summary judgment a tougher sell for employers, and that can affect how some Title VII cases play out, according to Robin Shea, a partner with Constangy Brooks Smith & Prophete LLP in Winston-Salem, North Carolina.

“I do think it’s possible that harassment and retaliation cases will either go to trial or settle because the employer believes it’s not going to get summary judgment,” she said.
Boyer-Liberto alleged that within a 24-hour window in 2010 she was twice called a “porch monkey” and threatened with the loss of her job by a white restaurant manager. The en banc majority said Thursday that an isolated incident of harassment can create a hostile work environment.

And with respect to retaliation, the opinion said that an employee who reports an isolated incident of harassment that is physically threatening or humiliating will be shielded even if that incident isn’t bad enough to create a hostile work environment.

To the extent that the May 7 ruling conflicts with the 2006 Jordan holding, Jordan is overruled, wrote Judge Robert King, who authored last week’s decision. Judge King also took part in the Jordan case — which involved a worker who claimed he heard a racist exclamation from a coworker when the infamous D.C. snipers were captured — and dissented, taking issue with the dismissal of the plaintiff’s Title VII and Maryland county code retaliation claims.

The Jordan panel decision laid out a standard for retaliation claims that Judge King said “deters harassment victims from speaking up by depriving them of their statutory entitlement to protection from retaliation.”

Lawyers said last week’s ruling’s pronouncements on hostile work environment claims and retaliation claims were both significant, but it was the retaliation component that broke new ground.

“There’s no question that it’s new law, but it’s actually just bringing the Fourth Circuit case law in line with the Supreme Court’s admonition in [Burlington Northern v. White, 2006,] which is that the anti-retaliation provisions need to be interpreted broadly,” Van Kampen said.

While the Boyer-Liberto ruling is certainly plaintiff-friendly, it doesn’t call for lawyers in the Fourth Circuit to revamp the advice they’ve been giving clients, lawyers said. Investigating and potentially taking disciplinary action over an isolated slur, as well as not retaliating against someone who complains, aren’t departures from existing best practices.

“We have always advised clients to do exactly what the Fourth Circuit is saying they ought to do,” Shea said. “I think the biggest thing is that employers who make a mistake are going to be losing some defenses they would have had in the old days.”

Endorsing a broad scope for Title VII’s anti-retaliation provisions will encourage workers who feel they are being harassed to come forward earlier, and that might actually benefit not only employees who will enjoy increased protection, but companies as well.

The earlier complaints are made, the more opportunity the employer has to stave off litigation or a U.S. Equal Employment Opportunity Commission charge, lawyers say.

“That is not a very employer-friendly standard,” Shea of the en banc decision, “but I think it makes a lot of sense to encourage people to make complaints as soon as possible.”

Outten & Golden LLP’s Paul Mollica said the Jordan decision represented a “very bad rule” that left workers vulnerable to being fired if they piped up about a single incident and left them in limbo, waiting for some “magic undefined moment” when they could complain and be shielded from retaliation.

The May 7 decision promotes self-regulation and gives employers a chance to step in and remedy situations before they turn too ugly, said Mollica, who represents employees.
“I think this is a benefit to everybody,” he said.

But BakerHostetler’s Dennis Duffy said the Boyer-Liberto decision left open questions about exactly when Title VII’s anti-retaliation protections kick in.

“I don’t think they’ve given a quantum below which the plaintiff would be deemed to not be acting in good faith,” Duffy said.

But what the en banc did do, he said, was redraw the battle lines for future fights over summary judgment in cases where a plaintiff claims to have been retaliated against in violation of Title VII for complaining about perceived harassment.

The effect of the Fourth Circuit’s en banc opinion in those cases will likely be similar to the effect that the Americans with Disabilities Act Amendments Act had on disability bias cases, lawyers agreed. By expanding what constituted a “disability” under the ADA, the 2008 amendments shifted the focus of summary judgment motions in ADA cases away from whether a given worker had a protected disability, and onto the employer’s efforts to offer reasonable accommodations and the justification for any adverse action.

Similarly, employers facing Title VII retaliation claims in the Fourth Circuit may now want to shift their arguments away from contesting that a worker engaged in protected activity and concentrate on showing that a challenged employment action was undertaken for legitimate reasons, Duffy said.

“Now, we may have to spot the plaintiff protected status, and the line of debate will be: Why did you take the adverse employment action and why is it not retaliation?” he said.