Reya Boyer-Liberto v. Fontainebleau Corporation

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1473

REYA C. BOYER-LIBERTO,

Plaintiff – Appellant,

v.

FONTAINEBLEAU CORPORATION, trading as Clarion Resort
Fontainebleau Hotel; LEONARD P. BERGER,

Defendants – Appellees.

-------------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; METROPOLITAN
WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION; PUBLIC JUSTICE
CENTER, INC.,

Amici Supporting Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:12-cv-00212-JKB)

Argued: September 18, 2014 Decided: May 7, 2015

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the
majority opinion, in which Chief Judge Traxler and Judges Motz,
Gregory, Shedd, Duncan, Keenan, Wynn, Diaz, Floyd, Thacker, and
Harris joined. Judge Wilkinson wrote an opinion concurring in
part and dissenting in part, in which Judge Agee joined. Judge
Niemeyer wrote a dissenting opinion.

ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant. Harriet Ellen Cooperman,
SAUL EWING LLP, Baltimore, Maryland, for Appellees. Paul D.
Ramshaw, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus U.S. Equal Employment Opportunity
Commission. ON BRIEF: Brett S. Covington, SAUL EWING LLP,
Baltimore, Maryland, for Appellees. P. David Lopez, General
Counsel, Carolyn L. Wheeler, Acting Associate General Counsel,
Jennifer S. Goldstein, Acting Assistant General Counsel, Office
of General Counsel, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus U.S. Equal Employment
Opportunity Commission. Stephen Z. Chertkof, Douglas B. Huron,
HELLER, HURON, CHERTKOF & SALZMAN PLLC, Washington, D.C.; Ilana
Gelfman, Francis D. Murnaghan, Appellate Advocacy Fellow, PUBLIC
JUSTICE CENTER, Baltimore, Maryland, for Amici Metropolitan
Washington Employment Lawyers Association and the Public Justice
Center.

2
KING, Circuit Judge:

Reya C. Boyer-Liberto, the African-American plaintiff in

these civil rights proceedings, alleges that within a single

twenty-four-hour period in September 2010, while working as a

cocktail waitress at the Clarion Resort Fontainebleau Hotel in

Ocean City, Maryland (the “Clarion”), she was twice called a

“porch monkey” and threatened with the loss of her job by a

Caucasian restaurant manager. Soon after reporting to higher-

ups at the hotel that she had been racially harassed, Liberto

was fired by the Clarion’s owner, Dr. Leonard P. Berger. This

action against the Fontainebleau Corporation and Berger ensued,

with Liberto asserting claims of hostile work environment and

retaliation, under both Title VII of the Civil Rights Act of

1964 and 42 U.S.C. § 1981. The district court awarded summary

judgment to the defendants, see Boyer-Liberto v. Fontainebleau

Corp., No. 1:12-cv-00212 (D. Md. Apr. 5, 2013), ECF No. 52, and

a not-fully-unanimous panel of this Court affirmed, see Boyer-

Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014).

The panel’s decision was vacated, however, by our grant of

rehearing en banc.

As explained below, we now vacate the judgment of the

district court and remand for further proceedings on Liberto’s

claims. In so doing, we underscore the Supreme Court’s

pronouncement in Faragher v. City of Boca Raton, 524 U.S. 775,

3
788 (1998), that an isolated incident of harassment, if

extremely serious, can create a hostile work environment. We

also recognize that an employee is protected from retaliation

when she reports an isolated incident of harassment that is

physically threatening or humiliating, even if a hostile work

environment is not engendered by that incident alone. Finally,

we specify that, to the extent today’s decision is in conflict

with Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th

Cir. 2006), Jordan is hereby overruled.

I.

A.

The record in this matter reflects that on August 4, 2010,

Liberto began working at the Clarion, an oceanfront hotel

containing guest rooms, several restaurants and bars, a

nightclub, and a conference center with meeting and banquet

facilities. 1 During the seven weeks she was employed with the

1
For purposes of our de novo assessment of the district
court’s summary judgment award, we view the facts in the light
most favorable to Liberto, as the nonmoving party. See Laber v.
Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Thus, like
the district court, we accept that Liberto was called a “porch
monkey” on two consecutive days, and that the defendants knew of
at least one of those alleged slurs when the decision to
discharge Liberto was made. See Boyer-Liberto v. Fontainebleau
Corp., No. 1:12-cv-00212, slip op. at 3 n.2 (D. Md. Apr. 5,
2013), ECF No. 52. Much of our factual recitation is drawn from
Liberto’s deposition testimony; we do not rely on her
(Continued)
4
Clarion’s Food and Beverage Department, Liberto worked in

assorted roles, including restaurant hostess, restaurant and

banquet server, bartender, and cocktail waitress. According to

Liberto, the Clarion assigned her that variety of jobs so that

she could learn all positions within the Food and Beverage

Department as part of her training.

On the night of September 14, 2010, Liberto was working as

a cocktail waitress in the Clarion’s nightclub. One of her

customers ordered a “Hula Hula,” a drink that is time-consuming

to prepare. The bartender in the adjacent main bar refused to

fill the order, explaining to Liberto that other nightclub

patrons would see the Hula Hula and want that drink, too. In an

effort to please her customer and after consulting immediate

supervisor Jamie Avery, Liberto went beyond the main bar to the

pub bar, where she found a bartender willing to make a Hula

Hula. Once the drink was prepared, Liberto wanted to avoid a

confrontation with the bartender in the main bar, so she chose a

new path back to the nightclub that took her through the

restaurant kitchen. Liberto carried the Hula Hula briskly

through the kitchen and across the nightclub to her customer’s

table. She then went to a server station, which was located in

interrogatory answers, which the district court properly
excluded from consideration. See id.

5
the nightclub several feet from the kitchen doors, to print a

guest check.

At that point, Liberto was confronted by Trudi Clubb, a

white Food and Beverage Manager at the Clarion. Unbeknownst to

Liberto, Clubb had been yelling at Liberto as she passed through

the kitchen carrying the Hula Hula. Liberto soon learned that

Clubb was livid because she believed that Liberto had heard but

ignored her. As Liberto worked at the server station, Clubb

came through the kitchen doors, loudly screaming, “Hey, girl

that can’t hear.” J.A. 237. 2 Clubb, still shouting, quickly

approached Liberto, who turned her face away from Clubb in an

effort to remain calm — a move that made Clubb even more

furious. Clubb then came so close to Liberto that Liberto could

feel Clubb’s breath on her face as Clubb stood at Liberto’s

side. Indeed, continuing to yell at Liberto, Clubb sprayed

Liberto’s face with saliva. Clubb’s message was that Liberto

should have neither walked through the kitchen nor ignored

Clubb, and Liberto repeatedly indicated that she understood and

agreed.

Clubb’s shouting nonetheless persisted, even as Liberto

left the server station to tend to nightclub customers. Clubb

2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

6
was now loudly berating Liberto for walking away from her, at

first following Liberto into the nightclub and then moving back

to the server station. Upon Liberto’s subsequent return to that

area, Clubb finally proceeded to exit the nightclub into the

kitchen. As she did so, Clubb threatened Liberto in words that

included, “[I’m] going to get [you]” and “[I’m] going to make

[you] sorry.” J.A. 252-53. Clubb then concluded her threat by

turning to look at Liberto and calling her either a “damn porch

monkey” or a “dang porch monkey.” See id. at 258.

Upon arriving for a dinner shift the following day,

September 15, 2010, Liberto went to the Clarion’s management

office to report Clubb’s conduct to Food and Beverage Director

Richard Heubeck. Liberto had just begun talking to Heubeck when

she was interrupted by Clubb, who came into the office and said

to Liberto, “I need to speak to you, little girl.” J.A. 263.

Liberto responded that she was meeting with Heubeck, but Clubb

retorted, “I’m more important,” prompting Liberto to follow

Clubb out of the office. Id. at 263-64. Clubb and Liberto sat

at a nearby table, and Clubb reprimanded Liberto, in a raised

and angry voice, for passing through the kitchen the prior

night. As the two women then rose from the table and pushed in

their chairs, Clubb threatened, “I’m gonna get you. I’m gonna

go to [hotel owner] Dr. Berger.” Id. at 266. Her voice still

loud and angry though somewhat lower than before, Clubb capped

7
the threat by looking directly at Liberto and again calling her

a “porch monkey.” Id. at 266-68.

On September 16, 2010, Liberto arranged to speak with Human

Resources Director Nancy Berghauer by telephone the following

day. During the September 17 phone call, Liberto complained

that she had been racially harassed by Clubb. From handwritten

notes, Berghauer prepared a typewritten summary of her

discussion with Liberto, which included Liberto’s allegation

that Clubb called her a “porch monkey” on September 15.

Berghauer provided the summary on September 17 to Dr. Berger and

General Manager Mark Elman, and Elman met with Liberto on

September 18 to further discuss her complaint. Meanwhile,

although Clubb denied ever using the term “porch monkey,”

Heubeck issued her a written notice on September 18 advising

that, as “a member of our Food & Beverage Management team

. . . , [Clubb] is expected to conduct herself as such” and

“needs to be cautious the language or phrases she uses can not

be perceived as racist or derogatory.” J.A. 311.

According to Dr. Berger, Liberto’s racial harassment

complaint of September 17, 2010, prompted him to go to Heubeck

that day and ask — for the first time ever — about Liberto’s

performance. In Berger’s account, Heubeck gave a negative

evaluation of Liberto and attributed her variety of job

assignments to failure in every role she tried; thus, after

8
further consulting Elman and Berghauer between September 18 and

20, Berger made the decision to fire Liberto immediately. At

the beginning of her scheduled shift on September 21, Liberto

was notified that she was being discharged.

Whether Clubb had been empowered by the Clarion to fire

Liberto or take other tangible employment actions against her is

unclear on this record. From Liberto’s perspective during her

short time as a Clarion employee, Clubb “was just Dr. Berger’s

friend and she was just there to say hello and greet people as a

glorified hostess.” J.A. 213. Liberto did not know that Clubb

held a manager title and did not consider Clubb to be her

manager. See id. at 214 (Liberto’s deposition testimony that

she reported to Avery and Heubeck, and that Avery told Liberto

“not to go to [Clubb] because [Clubb] did not have the power to

do voids or make decisions”). Nevertheless, Clubb conveyed to

Liberto — and Liberto got the message — that Clubb was in a

position to have Liberto terminated. Before she had finished

just her second week of work at the Clarion, Liberto “felt

extremely singled out” by Clubb and perceived that “my position

was being threatened” by her. See id. at 277-79 (discussing an

August 16, 2010 Twitter message from Liberto to a co-worker

saying that Clubb is “after me like [a] starving wol[f] on a

bone”). Clubb repeatedly told Liberto “what my place was” and

“always made it clear that Dr. Berger would listen to anything

9
she said and wouldn’t believe me.” Id. at 279. Clubb’s conduct

led Liberto to understand that Clubb “did have power that I did

not have.” Id. at 274. Consistent with that perception, Elman

informed Liberto during their September 18, 2010 meeting that

Clubb was Liberto’s “boss.” See id. at 324 (September 18 email

to Heubeck and Berghauer from Elman recounting what he told

Liberto).

B.

On January 23, 2012, after exhausting her administrative

remedies with the federal government’s Equal Employment

Opportunity Commission (the “EEOC”), Liberto filed her complaint

in the District of Maryland. The complaint asserted four

claims: one claim each of hostile work environment and

retaliation pursuant to Title VII against solely the

Fontainebleau Corporation, trading as the Clarion Resort

Fontainebleau Hotel; and one claim each of hostile work

environment and retaliation under 42 U.S.C. § 1981 against both

the Fontainebleau Corporation and Dr. Berger.

1.

Following discovery, the defendants filed a motion for

summary judgment. Contesting the validity of the hostile work

environment claims, the defendants focused on just one of the

four elements of such a claim, contending that there had been no

showing that Clubb’s conduct was severe or pervasive enough to

10
alter Liberto’s conditions of employment and produce an abusive

work environment. See Okoli v. City of Balt., 648 F.3d 216, 220

(4th Cir. 2011) (“To demonstrate . . . a racially hostile work

environment, a plaintiff must show that there is (1) unwelcome

conduct; (2) that is based on the plaintiff’s . . . race;

(3) which is sufficiently severe or pervasive to alter the

plaintiff’s conditions of employment and to create an abusive

work environment; and (4) which is imputable to the employer.”

(alteration and internal quotation marks omitted)); see also

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001)

(explaining that the elements of a hostile work environment

claim “are the same under either § 1981 or Title VII”).

With respect to the retaliation claims, the defendants

argued that Liberto could not establish that she undertook a

protected activity by making her racial harassment complaint to

the Clarion. See EEOC v. Navy Fed. Credit Union, 424 F.3d 397,

405-06 (4th Cir. 2005) (“In order to establish a prima facie

case of retaliation, a plaintiff must prove three elements:

(1) that she engaged in a protected activity; (2) that her

employer took an adverse employment action against her; and

(3) that there was a causal link between the two events.”); see

also Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188

(4th Cir. 2004) (recognizing that elements of prima facie § 1981

and Title VII retaliation claims are identical). The defendants

11
elaborated that Liberto’s complaint was not a protected

opposition activity because she could not reasonably have

believed that Clubb’s conduct was sufficiently severe or

pervasive to engender a prohibited hostile work environment.

See Navy Fed., 424 F.3d at 406 (explaining that an opposition

activity, such as making an internal complaint, is protected

where an employee opposes either “employment actions actually

unlawful under Title VII” or “employment actions [she]

reasonably believes to be unlawful”).

2.

In seeking summary judgment, the defendants substantially

relied on our precedent in Jordan v. Alternative Resources

Corp., 458 F.3d 332 (4th Cir. 2006). There, the African-

American plaintiff alleged that, while watching a news report on

a workplace television about the capture of the infamous D.C.

snipers in 2002, a co-worker exclaimed in his presence, “They

should put those two black monkeys in a cage with a bunch of

black apes and let the apes f[uc]k them.” See Jordan, 458 F.3d

at 336. The plaintiff, Jordan, reported the comment to his

supervisors and was fired within a month of his complaint. Id.

at 337. Jordan then filed suit against his employers, alleging,

inter alia, retaliatory discharge in contravention of Title VII

and § 1981. Id. The district court dismissed Jordan’s

complaint under Federal Rule of Civil Procedure 12(b)(6) for

12
failure to state a claim upon which relief can be granted, and

Jordan appealed to our Court, which affirmed by a split panel

decision.

Addressing the Title VII retaliation claim, the opinion of

the panel majority related that, under Title VII, “‘[i]t shall

be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by

this subchapter.’” Jordan, 458 F.3d at 338 (quoting 42 U.S.C.

§ 2000e-3(a)). The majority continued that, “[r]eading the

language generously to give effect to its purpose, however, we

have also held that opposition activity is protected when it

responds to an employment practice that the employee reasonably

believes is unlawful.” Id. (citing Navy Fed., 424 F.3d at 406-

07).

The Jordan majority observed that the employment practices

that may be the subject of protected opposition activity include

discrimination under 42 U.S.C. § 2000e-2(a)(1) in the form of

“maintaining a racially hostile work environment, i.e., a

‘workplace . . . permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment.’” Jordan, 458 F.3d at 339 (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The

13
majority further recognized that “[c]ourts determine ‘whether an

environment is sufficiently hostile or abusive by looking at all

the circumstances, including the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.’”

Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-

88 (1998)). As the majority explained, “‘simple teasing,

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms

and conditions of employment.’” Id. (quoting Faragher, 524 U.S.

at 788). The majority also noted that “hostile work

environments generally result only after an accumulation of

discrete instances of harassment.” Id. (citing Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile

environment claims are different in kind from discrete acts.

Their very nature involves repeated conduct. . . . Such claims

are based on the cumulative effect of individual acts.”)).

To assess the merits of Jordan’s Title VII retaliation

claim, the panel majority clarified, “the question reduces to

whether Jordan complained about an actual hostile work

environment or, if there was not one, whether Jordan could

reasonably have believed there was one.” Jordan, 458 F.3d at

339. The majority first concluded that no hostile work

14
environment actually existed, in that the “black monkeys”

comment — though “unacceptably crude and racist” — “was an

isolated response directed at the snipers” rather than “any

fellow employee.” Id. at 339-40. The majority underscored that

the comment “was a singular and isolated exclamation” that did

not and could not have “altered the terms and conditions of

[Jordan’s] employment,” and that Jordan did “not describe a

workplace permeated by racism, by threats of violence, by

improper interference with work, or by conduct resulting in

psychological harm.” Id. at 340.

Turning to the issue of Jordan’s reasonable belief, the

panel majority concluded that “no objectively reasonable person

could have believed that [Jordan’s workplace] was in the grips

of a hostile work environment.” Jordan, 458 F.3d at 341. But

the majority also acknowledged that, pursuant to Navy Federal,

Jordan could rely on a reasonable belief that a hostile work

environment “was taking shape.” See id. at 340-41 (“Navy

Federal holds that an employee seeking protection from

retaliation must have an objectively reasonable belief in light

of all the circumstances that a Title VII violation has happened

or is in progress.”); see also Navy Fed., 424 F.3d at 406-07

(concluding that plaintiff reasonably believed she was opposing

unlawful retaliation by disrupting plan that had been set in

motion by employer to terminate another employee for her

15
discrimination complaints). The majority elaborated that,

“[u]nder § 2000e-3(a) as construed by Navy Federal, we cannot

simply assume, without more, that the opposed conduct will

continue or will be repeated unabated; rather, the employee must

have an objectively reasonable belief that a violation is

actually occurring based on circumstances that the employee

observes and reasonably believes.” Jordan, 458 F.3d at 341

(emphasis omitted). From there, the majority determined that

Jordan could not establish a reasonable belief that a hostile

work environment was in progress, in that “no allegation in the

complaint suggests that a plan was in motion to create such an

environment, let alone that such an environment was even likely

to occur.” Id. at 340. Accordingly, the majority opinion

affirmed the dismissal of Jordan’s Title VII retaliation claim,

as well as his § 1981 retaliation claim.

The Jordan dissent agreed with the panel majority that, to

gain protection for his opposition activity, an employee may

rely on a reasonable belief that Title VII is in the process of

being violated by the conduct being opposed. See Jordan, 458

F.3d at 352 (King, J., dissenting) (citing Navy Fed., 424 F.3d

at 406-07). The dissent disputed the majority’s view, however,

that Navy Federal requires an employee opposing a potential

hostile work environment to prove “that a plan was in motion to

create such an environment.” That is, the dissent distinguished

16
the discrete action opposed by the Navy Federal plaintiff (the

imminent retaliatory discharge of another employee) from the

conduct opposed in Jordan (conduct that, if repeated, could

amount to a hostile work environment).

The Jordan dissent concluded that, “[b]y opposing racially

charged conduct that he reasonably believes could be part and

parcel of a hostile work environment, a reporting employee has

opposed the impermissible whole, even absent an independent

basis for believing the conduct might be repeated.” Jordan, 458

F.3d at 354. “Indeed,” the dissent emphasized, “we require

employees to report such incidents in order to prevent hostile

work environments from coming into being.” Id. (referring to

employer’s affirmative Ellerth/Faragher defense, see Faragher,

524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 764-65 (1998), imposing duty on employee to avoid harm by

reporting harassment to employer). The dissent further

highlighted precedent observing “that an employee’s ‘generalized

fear of retaliation does not excuse a failure to report’

harassing conduct, because ‘Title VII expressly prohibits any

retaliation against [employees] for reporting . . .

harassment.’” Id. at 355 (alterations in original) (quoting

Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th

Cir. 2001)). And, the dissent stressed the Supreme Court’s

then-recent edict that “‘[i]nterpreting the antiretaliation

17
provision to provide broad protection from retaliation helps

assure the cooperation upon which accomplishment of [Title

VII’s] primary objective’ — preventing harm — ‘depends.’” Id.

at 352 (alteration in original) (quoting Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)).

At bottom, the Jordan dissent recognized that the “black

monkeys” comment made by Jordan’s co-worker “is the stuff of

which a racially hostile work environment is made,” and thus

that “it was entirely reasonable for Jordan to believe that, in

reporting the . . . comment to his employers, he was opposing a

racially hostile work environment.” Jordan, 458 F.3d at 355.

The dissent lamented that, because of the panel majority’s

opinion to the contrary, “employees in this Circuit who

experience racially harassing conduct are faced with a ‘Catch-

22.’” Id. As the dissent explained those employees’ quandary,

“[t]hey may report such conduct to their employer at their peril

(as Jordan did), or they may remain quiet and work in a racially

hostile and degrading work environment, with no legal recourse

beyond resignation.” Id. But see Jordan, 458 F.3d at 342 (the

majority’s retort that “Jordan’s dilemma, that the law is

inconsistent by both encouraging and discouraging ‘early’

reporting, is presented too abstractly. The strong policy of

removing and preventing workplace discrimination can and does

coexist with Navy Federal’s objective reasonableness standard”).

18
The opinion of the Jordan majority thereafter withstood a

petition for rehearing en banc, which was denied on a 5-5 vote

of the judges then in active service. See Jordan v. Alternative

Res. Corp., 467 F.3d 378 (4th Cir. 2006).

3.

Here, by its decision of April 5, 2013, the district court

relied on Jordan and awarded summary judgment to the defendants,

adopting their contentions that Clubb’s conduct was not so

severe or pervasive as to create a hostile work environment or

to instill a reasonable belief in Liberto, such as would protect

her from retaliation, that she had been unlawfully harassed.

See Boyer-Liberto v. Fontainebleau Corp., No. 1:12-cv-00212 (D.

Md. Apr. 5, 2013), ECF No. 52. 3 In rejecting Liberto’s hostile

3
The district court’s grounds for awarding summary judgment
— the lack of severe or pervasive conduct (element three of the
hostile work environment claims) and a protected activity
(element one of the retaliation claims) — were the sole grounds
that had been propounded by the defendants. See supra Part
I.B.1. Regardless, the court acknowledged the balance of the
elements of Liberto’s claims and accepted that they had been
satisfied. With respect to the hostile work environment claims,
that meant Liberto had shown unwelcome conduct (element one),
based on her race (element two), which, “[g]iven Clubb’s
position in Clarion’s management structure,” was imputable to
the employer (element four). See Boyer-Liberto v. Fontainebleau
Corp., No. 1:12-cv-00212, slip op. at 5 (D. Md. Apr. 5, 2013),
ECF No. 52. As for the retaliation claims, the court deemed it
“indisputable” that the defendants took an adverse employment
action against Liberto (element two) and that there was a causal
link between her racial harassment complaint and the adverse
employment action (element three). Id. at 7.

19
work environment claims, the district court determined that

“[t]he two incidents of use of a racial epithet, assuming they

occurred as Liberto testified, simply do not comprise either

pervasive or severe conduct, however unacceptable they are.”

Id. at 6. The court explained that it had “compare[d] the

evidence in this case to that in [three others]” and

“conclude[d] the conduct at issue here does not rise to the

level of conduct found to be severe or pervasive in those Fourth

Circuit cases.” Id. (citing Anderson v. G.D.C., Inc., 281 F.3d

452, 459 (4th Cir. 2002) (“Anderson was subjected, on a daily

basis, to verbal assaults of the most vulgar and humiliating

sort.”); Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d

179, 199 (4th Cir. 2000) (“Ms. Conner experienced regular,

profound humiliation because of her gender, unlike the male

machine operators.”); Amirmokri v. Balt. Gas & Elec. Co., 60

F.3d 1126, 1131 (4th Cir. 1995) (“[Amirmokri] testified that for

six months . . . co-workers abused him almost daily, calling him

names like ‘the local terrorist,’ a ‘camel jockey’ and ‘the Emir

of Waldorf.’”)). The district court then invoked Jordan for the

proposition that an “isolated racist comment” is “‘a far cry

from . . . an environment of crude and racist conditions so

severe or pervasive that they alter[] the conditions of

[plaintiff’s] employment.’” Id. (third alteration in original)

(quoting Jordan, 458 F.3d at 340). In concomitantly rejecting

20
Liberto’s retaliation claims, the court again looked to Jordan

and ruled that “‘no objectively reasonable person could have

believed that the [plaintiff’s work environment] was, or was

soon going to be, infected by severe or pervasive racist,

threatening, or humiliating harassment.’” Id. at 8 (alteration

in original) (quoting Jordan, 458 F.3d at 341).

Liberto timely noted her appeal, and the matter was

reviewed by a three-judge panel of this Court. See Boyer-

Liberto v. Fontainebleau Corp., 752 F.3d 350 (4th Cir. 2014).

The panel decision was unanimous that the defendants were

properly awarded summary judgment on Liberto’s hostile work

environment claims, in that Clubb’s “use of [the term ‘porch

monkey’] twice in a period of two days in discussions about a

single incident, was not, as a matter of law, so severe or

pervasive as to change the terms and conditions of Liberto’s

employment.” Id. at 356. The panel observed that Liberto had

“not pointed to any Fourth Circuit case, nor could she, finding

the presence of a hostile work environment based on a single

incident.” Id. at 358 (comparing Jordan with Anderson, Conner,

and Amirmokri).

The panel was split, however, with respect to Liberto’s

retaliation claims. The opinion of the panel majority validated

the district court’s summary judgment award on those claims,

explaining that, “if no objectively reasonable juror could have

21
found the presence of a hostile work environment, as we today

hold, it stands to reason that Liberto also could not have had

an objectively reasonable belief that a hostile work environment

existed.” Boyer-Liberto, 752 F.3d at 360 (emphasis omitted).

Although the panel majority allowed that an “employee’s

opposition may be protected before the hostile environment has

fully taken form,” the majority faulted Liberto for failing to

“present any indicators that the situation at the Clarion would

have ripened into a hostile work environment.” Id. In that

regard, the majority equated Liberto’s case with Jordan. See

id. (“Just as in Jordan, we conclude here that ‘while in the

abstract, continued repetition of racial comments of the kind

[Clubb] made might have led to a hostile work environment, no

allegation in the [record] suggests that a plan was in motion to

create such an environment, let alone that such an environment

was even likely to occur.’” (alterations in original) (quoting

Jordan, 458 F.3d at 340)); see also id. at 361 (Shedd, J.,

concurring) (“Based on this Court’s decision in Jordan . . . , I

agree with Judge Niemeyer that summary judgment should . . . be

affirmed on the retaliation claim.”).

The dissent distinguished the facts in this case from those

in Jordan and concluded that, “[p]articularly in light of these

significant differences, . . . Liberto could have reasonably

believed that Clubb’s conduct was actionable.” Boyer-Liberto,

22
752 F.3d at 363 (Traxler, C.J., concurring in part and

dissenting in part) (pointing out that Jordan’s co-worker made a

single comment not directed at Jordan or another employee, while

Clubb called Liberto herself “the very same name in the very

same threatening context” on two consecutive days). In any

event, the dissent also questioned whether Jordan was correctly

decided. See id. (“I share in the sentiment Judge King

expressed so well in his dissent in Jordan that our very narrow

interpretation of what constitutes a reasonable belief in this

context has placed employees who experience racially

discriminatory conduct in a classic ‘Catch-22’ situation.”

(alteration and internal quotation marks omitted)).

Following issuance of the panel’s decision, Liberto sought

rehearing en banc, and a majority of our judges in regular

active service voted to grant Liberto’s petition. Accordingly,

the panel’s decision was vacated, and today our en banc Court

assesses anew the propriety of the district court’s summary

judgment award to the defendants. See 4th Cir. R. 35(c).

II.

We review de novo a district court’s award of summary

judgment, viewing the facts in the light most favorable to the

nonmoving party. See Laber v. Harvey, 438 F.3d 404, 415 (4th

Cir. 2006) (en banc). Summary judgment is appropriate “if the

23
movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

III.

A.

1.

We begin by addressing Liberto’s hostile work environment

claims — an endeavor that leads us to outline pertinent legal

principles, including some of those already identified above.

Title VII renders it “an unlawful employment practice for an

employer . . . to discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges

of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

An employer contravenes § 2000e-2(a)(1) by, inter alia,

requiring an African-American employee to work in a racially

hostile environment. See Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 65-67 (1986). A hostile environment exists “[w]hen the

workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (internal quotation marks omitted).

24
Thus, to prevail on a Title VII claim that a workplace is

racially hostile, “a plaintiff must show that there is

(1) unwelcome conduct; (2) that is based on the plaintiff’s

. . . race; (3) which is sufficiently severe or pervasive to

alter the plaintiff’s conditions of employment and to create an

abusive work environment; and (4) which is imputable to the

employer.” Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir.

2011) (alteration and internal quotation marks omitted). The

same test applies to a hostile work environment claim asserted

under 42 U.S.C. § 1981. See Spriggs v. Diamond Auto Glass, 242

F.3d 179, 184 (4th Cir. 2001); see also 42 U.S.C. § 1981(a)

(providing that “[a]ll persons within the jurisdiction of the

United States shall have the same right in every State and

Territory to make and enforce contracts . . . as is enjoyed by

white citizens”); Jones v. R. R. Donnelley & Sons Co., 541 U.S.

369, 373 (2004) (recognizing that hostile work environment

claims may be brought under § 1981).

Element three of a hostile work environment claim requires

a showing that “the environment would reasonably be perceived,

and is perceived, as hostile or abusive”; the plaintiff may, but

is not required to, establish that the environment is

“psychologically injurious.” See Harris, 510 U.S. at 22.

Whether the environment is objectively hostile or abusive is

“judged from the perspective of a reasonable person in the

25
plaintiff’s position.” Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 81 (1998). That determination is made “by

looking at all the circumstances,” which “may include the

frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.” Harris, 510 U.S. at 23. It “is

not, and by its nature cannot be, a mathematically precise

test.” Id. at 22.

To be sure, viable hostile work environment claims often

involve repeated conduct. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 115-17 (2002). That is because, “in

direct contrast to discrete acts, a single act of harassment may

not be actionable on its own.” Id. at 115. For example, “‘mere

utterance of an . . . epithet which engenders offensive feelings

in an employee’ does not sufficiently affect the conditions of

employment to implicate Title VII.” Harris, 510 U.S. at 21

(alteration in original) (quoting Meritor, 477 U.S. at 67). The

same goes for “simple teasing [and] offhand comments.” See

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

Importantly, however, an “isolated incident[]” of harassment can

“amount to discriminatory changes in the terms and conditions of

employment,” if that incident is “extremely serious.” Id.

(internal quotation marks omitted).

26
 In measuring the severity of harassing conduct, the status

of the harasser may be a significant factor — e.g., “a

supervisor’s use of [a racial epithet] impacts the work

environment far more severely than use by co-equals.” Rodgers

v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993).

Simply put, “a supervisor’s power and authority invests his or

her harassing conduct with a particular threatening character.”

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998).

The status of the harasser also is relevant to element four

of a hostile work environment claim, which necessitates proof

that the harassment is imputable to the employer. On the one

hand, “[i]f the harassing employee is the victim’s co-worker,

the employer is liable only if it was negligent in controlling

working conditions.” Vance v. Ball State Univ., 133 S. Ct.

2434, 2439 (2013); see also Ocheltree v. Scollon Prods., Inc.,

335 F.3d 325, 333-34 (4th Cir. 2003) (en banc) (“[T]he employer

may be liable in negligence if it knew or should have known

about the harassment and failed to take effective action to stop

it.”). On the other hand, where the harasser is the victim’s

supervisor, “different rules apply”: The employer is strictly

liable for the supervisor’s harassing behavior if it “culminates

in a tangible employment action,” but otherwise “may escape

liability by establishing, as an affirmative defense, that

(1) the employer exercised reasonable care to prevent and

27
correct any harassing behavior and (2) that the plaintiff

unreasonably failed to take advantage of the preventive or

corrective opportunities that the employer provided.” Vance,

133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth,

524 U.S. at 765). The Ellerth/Faragher defense, in essence,

imposes a duty on the victim to report her supervisor’s

harassing behavior to the employer. See Barrett v. Applied

Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001)

(discussing “employee’s reporting requirement” under Faragher

and Ellerth). Relatedly, a plaintiff seeking to impute

liability to her employer for harassment by a co-worker may not

be able to establish the employer’s negligence if she did not

report the harassment. See Vance, 133 S. Ct. at 2453

(recognizing that evidence relevant to negligence inquiry would

include evidence that employer “failed to respond to

complaints”); id. at 2464 (Ginsburg, J., dissenting) (“An

employee may have a reputation as a harasser among those in his

vicinity, but if no complaint makes its way up to management,

the employer will escape liability under a negligence

standard.”).

For purposes of the employer’s vicarious liability, the

harasser qualifies as a supervisor, rather than a co-worker, “if

he or she is empowered by the employer to take tangible

employment actions against the victim.” Vance, 133 S. Ct. at

28
2439 (majority opinion). An employee so empowered is able to

“effect a ‘significant change in employment status, such as

hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing

a significant change in benefits.’” Id. at 2443 (quoting

Ellerth, 524 U.S. at 761). As such, a supervisor has the

“authority to inflict direct economic injury.” Id. at 2448.

To be considered a supervisor, the employee need not have

the final say as to the tangible employment action; instead, the

employee’s decision may be “subject to approval by higher

management.” Vance, 133 S. Ct. at 2446 n.8 (citing Ellerth, 524

U.S. at 762). The Vance Court determined that one of the

harassers in Faragher “possessed the power to make employment

decisions having direct economic consequences for his victims”

based on the following: “No one [had been] hired without his

recommendation”; he “initiated firing and suspending personnel”;

his performance evaluations “translated into salary increases”;

and he “made recommendations regarding promotions.” Id.

(internal quotation marks omitted). Additionally, the Court

observed that, “even if an employer concentrates all decision-

making authority in a few individuals, it likely will not

isolate itself from heightened liability under Faragher and

Ellerth,” in that those individuals likely will have to rely on

the recommendations of others, and “the employer may be held to

29
have effectively delegated the power to take tangible employment

actions to the employees on whose recommendations it relies.”

Id. at 2452 (citing Ellerth, 524 U.S. at 762).

2.

In seeking summary judgment on Liberto’s hostile work

environment claims, the defendants’ sole contention was that

there had been no showing that Clubb’s conduct was severe or

pervasive enough to alter Liberto’s conditions of employment and

produce an abusive work environment. Liberto’s counter-

arguments included that there was a genuine dispute as to

whether the harassment she suffered on September 14 and 15,

2010, was sufficiently severe. To resolve that issue today, we

need not — and, in any event, on this record cannot — determine

whether Clubb was actually Liberto’s supervisor or simply her

co-worker, a fact relevant to the separate question of the

Clarion’s vicarious liability. Nevertheless, we are obliged to

consider how Clubb portrayed her authority and what Liberto thus

reasonably believed Clubb’s power to be. See Oncale, 523 U.S.

at 81 (“[T]he objective severity of harassment should be judged

from the perspective of a reasonable person in the plaintiff’s

position . . . .”).

The defendants have suggested that, because Liberto

understood Clubb to be a “glorified hostess” and not a

restaurant manager, see J.A. 213-14, Liberto could not have

30
reasonably perceived that Clubb’s conduct was severe enough to

create a hostile work environment. That premise ignores

evidence, however, that Clubb repeatedly and effectively

communicated to Liberto prior to September 14, 2010, that Clubb

had Dr. Berger’s ear and could have Liberto fired. See, e.g.,

id. at 274 (Liberto’s deposition testimony that Clubb “did have

power that I did not have”); id. at 279 (“I felt extremely

singled out and that my position was being threatened and it was

very clear.”); id. (“I was told what my place was. . . . And

[Clubb] always made it clear that Dr. Berger would listen to

anything she said and wouldn’t believe me.”).

The defendants’ theory also fails to take into account

Clubb’s assertion of power in the course of her harassment of

Liberto. On September 14, 2010, Clubb berated Liberto’s job

performance before threatening “to get [her]” and “make [her]

sorry,” and then calling her a “damn porch monkey” or a “dang

porch monkey.” See J.A. 252-53, 258. The following day, Clubb

obstructed Liberto’s attempted report of racial harassment to

Food and Beverage Director Heubeck by telling Liberto, “I need

to speak to you, little girl,” and “I’m more important [than

Heubeck].” Id. at 263-64. Immediately thereafter, Clubb again

reprimanded Liberto, again threatened to “get [her]” and to “go

to Dr. Berger,” and again called her a “porch monkey.” Id. at

266. Finally, while speaking with Liberto on September 18 about

31
her racial harassment complaint, General Manager Elman validated

Clubb’s assertion of authority by declaring Clubb to be

Liberto’s “boss.” Id. at 324.

Properly considering that evidence, we must accept that

Liberto believed — and reasonably so — that Clubb could make a

discharge decision or recommendation that would be rubber-

stamped by Dr. Berger. Thus, in gauging the severity of Clubb’s

conduct, we deem Clubb to have been Liberto’s supervisor. Cf.

Vance, 133 S. Ct. at 2446 n.8, 2452 (recognizing that, for

purposes of employer’s vicarious liability, employee may qualify

as supervisor if she can initiate tangible employment actions

“subject to approval by higher management” or make

recommendations on which employer relies). And we view Clubb’s

conduct as having the “particular threatening character” of

harassment perpetrated by a supervisor against her subordinate.

See Ellerth, 524 U.S. at 763. That perspective is especially

appropriate here, where Clubb employed racial epithets to cap

explicit, angry threats that she was on the verge of utilizing

her supervisory powers to terminate Liberto’s employment.

We also grasp that the use of Clubb’s chosen slur — “porch

monkey” — is about as odious as the use of the word “nigger.”

See Spriggs, 242 F.3d at 185. The latter epithet, of course,

“is pure anathema to African-Americans.” Id. Similarly,

describing an African-American as a “monkey,” and thereby

32
“suggest[ing] that a human being’s physical appearance is

essentially a caricature of a jungle beast[,] goes far beyond

the merely unflattering; it is degrading and humiliating in the

extreme.” Id.; see also, e.g., Green v. Franklin Nat’l Bank of

Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (recognizing that

“[p]rimate rhetoric has been used to intimidate African-

Americans” and that “[t]he use of the term ‘monkey’ and other

similar words,” including the variation “porch monkey,” has

“been part of actionable racial harassment claims across the

country” (citing cases)). As we and several of our sister

courts of appeals have recognized, “‘[p]erhaps no single act can

more quickly alter the conditions of employment and create an

abusive working environment than the use of an unambiguously

racial epithet such as “nigger” by a supervisor in the presence

of his subordinates.’” Spriggs, 242 F.3d at 185 (quoting

Rodgers, 12 F.3d at 675); accord Ellis v. Houston, 742 F.3d 307,

325-26 (8th Cir. 2014); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,

577 (D.C. Cir. 2013); Rivera v. Rochester Genesee Reg’l Transp.

Auth., 743 F.3d 11, 24 (2d Cir. 2012); McGinest v. GTE Serv.

Corp., 360 F.3d 1103, 1116 (9th Cir. 2004).

Consequently, a reasonable jury could find that Clubb’s two

uses of the “porch monkey” epithet — whether viewed as a single

incident or as a pair of discrete instances of harassment — were

severe enough to engender a hostile work environment. Cf. Adams

33
v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1253-54 (11th Cir.

2014) (concluding that, although a Caucasian supervisor’s

carving of “porch monkeys” into the aluminum of a ship where he

was working with the African-American plaintiff “was an isolated

act, it was severe”); Ayissi-Etoh, 712 F.3d at 577

(acknowledging that, where a supervisor “used a deeply offensive

racial epithet [‘nigger’] when yelling at Ayissi-Etoh to get out

of the office,” that “single incident might well have been

sufficient to establish a hostile work environment”); id. at 580

(Kavanaugh, J., concurring) (“[I]n my view, being called the n-

word by a supervisor — as Ayissi-Etoh alleges happened to him —

suffices by itself to establish a racially hostile work

environment.”).

In thus vacating the summary judgment award on Liberto’s

hostile work environment claims, we identify this as the type of

case contemplated in Faragher where the harassment, though

perhaps “isolated,” can properly be deemed to be “extremely

serious.” See Faragher, 524 U.S. at 788. We also acknowledge

that this is a first for our Court. We reject, however, any

notion that our prior decisions, including Jordan v. Alternative

Resources Corp., were meant to require more than a single

incident of harassment in every viable hostile work environment

case. Specifically, we observe that the district court

improperly analogized this matter (involving a racial epithet

34
directed at Liberto by her supervisor) to Jordan (concerning a

racist remark that was made by a mere co-worker and not aimed at

Jordan or any other employee). See 458 F.3d 332, 339-40 (4th

Cir. 2006). We further note that, in the cases unfavorably

compared to this one by the district court, the harassment was

so severe and pervasive that there were no close calls. See

Anderson v. G.D.C., Inc., 281 F.3d 452, 459 (4th Cir. 2002)

(“The evidence was unquestionably sufficient to submit

Anderson’s hostile environment claim to the jury.”); Conner v.

Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 199 (4th Cir.

2000) (“[T]here is ample support for the jury finding of severe

or pervasive conduct sufficient to constitute a hostile work

environment.”); Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d

1126, 1131 (4th Cir. 1995) (“A reasonable person could easily

find this atmosphere to be hostile.”). Liberto’s case may be

different from Anderson, Conner, and Amirmokri, but it is no

less worthy of a jury trial. 4

4
We do not suggest that a jury should be limited to
assessing whether Clubb’s two uses of the “porch monkey” slur,
without more, created a hostile work environment. A jury also
would be entitled to consider other evidence potentially
indicative of severe or pervasive harassment, including Clubb’s
treatment of Liberto throughout her short tenure at the Clarion;
Clubb’s shouting, spitting, and stalking on the night of
September 14, 2010; and Clubb’s use of the term “little girl” to
refer to Liberto on September 15. See, e.g., Conner, 227 F.3d
at 197 (“The more serious incidents enumerated here were
complemented by numerous additional occurrences that, in
(Continued)
35
 B.

1.

Turning to Liberto’s retaliation claims, Title VII

proscribes discrimination against an employee because, in

relevant part, she “has opposed any practice made an unlawful

employment practice by this subchapter.” 42 U.S.C. § 2000e-

3(a). Employees engage in protected oppositional activity when,

inter alia, they “complain to their superiors about suspected

violations of Title VII.” Bryant v. Aiken Reg’l Med. Ctrs.

Inc., 333 F.3d 536, 543-44 (4th Cir. 2003). To establish a

prima facie case of retaliation in contravention of Title VII, a

plaintiff must prove “(1) that she engaged in a protected

activity,” as well as “(2) that her employer took an adverse

employment action against her,” and “(3) that there was a causal

link between the two events.” EEOC v. Navy Fed. Credit Union,

424 F.3d 397, 405-06 (4th Cir. 2005). A prima facie retaliation

claim under 42 U.S.C. § 1981 has the same elements. See Honor

v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir.

2004); see also CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446

isolation, may have seemed less problematic, but which actually
served to exacerbate the severity of the situation.”).

36
(2008) (confirming that Ҥ 1981 encompasses retaliation

claims”). 5

In the context of element one of a retaliation claim, an

employee is protected when she opposes “not only . . .

employment actions actually unlawful under Title VII but also

employment actions [she] reasonably believes to be unlawful.”

Navy Fed., 424 F.3d at 406. The Title VII violation may be

complete, or it may be in progress. See id. at 406-07; see also

Jordan, 458 F.3d at 340-41 (“Navy Federal holds that an employee

seeking protection from retaliation must have an objectively

reasonable belief in light of all the circumstances that a Title

VII violation has happened or is in progress.”); Peters v.

Jenney, 327 F.3d 307, 320 (4th Cir. 2003) (concluding, in

reliance on decisions under Title VII, that “to show protected

activity, the plaintiff in a Title VI retaliation case need only

prove that he opposed an unlawful employment practice which he

reasonably believed had occurred or was occurring” (alterations

and internal quotation marks omitted)). In other words, an

5
We observe that, although the elements of prima facie
Title VII and § 1981 retaliation claims are identical, the
causation standard for a Title VII claim may differ from that
for a § 1981 claim after the Supreme Court’s decision in
University of Texas Southwestern Medical Center v. Nassar, 133
S. Ct. 2517 (2013) (holding that but-for standard of causation
applies to Title VII retaliation claims). We need not consider
that question today, however, because the defendants have raised
no issue with respect to causation.

37
employee is protected from retaliation when she opposes a

hostile work environment that, although not fully formed, is in

progress.

a.

The panel majority in Jordan ruled that, where an employee

has complained to his employer of an isolated incident of

harassment insufficient to create a hostile work environment,

the employee cannot have possessed a reasonable belief that a

Title VII violation was in progress, absent evidence “that a

plan was in motion to create such an environment” or “that such

an environment was [otherwise] likely to occur.” See 458 F.3d

at 340. We reject that aspect of Jordan today, however, for

several reasons.

First of all, the Jordan standard “imagines a fanciful

world where bigots announce their intentions to repeatedly

belittle racial minorities at the outset, and it ignores the

possibility that a hostile work environment could evolve without

some specific intention to alter the working conditions of

African-Americans through racial harassment.” See Jordan, 458

F.3d at 353-54 (King, J., dissenting). Tellingly, intent to

create a hostile work environment is not an element of a hostile

environment claim.

The Jordan standard also is at odds with the hope and

expectation that employees will report harassment early, before

38
it rises to the level of a hostile environment. Where the

harasser is her supervisor and no tangible employment action has

been taken, the victim is compelled by the Ellerth/Faragher

defense to make an internal complaint, i.e., “to take advantage

of any preventive or corrective opportunities provided by the

employer.” See Faragher, 524 U.S. at 807. Similarly, the

victim of a co-worker’s harassment is prudent to alert her

employer in order to ensure that, if the harassment continues,

she can establish the negligence necessary to impute liability.

See Vance, 133 S. Ct. at 2453. The reporting obligation is

essential to accomplishing Title VII’s “primary objective,”

which is “not to provide redress but to avoid harm.” See

Faragher, 524 U.S. at 806. Thus, we have recognized that the

victim is commanded to “report the misconduct, not investigate,

gather evidence, and then approach company officials.” See

Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th

Cir. 2001). Further, we have emphasized that an employee’s

“generalized fear of retaliation does not excuse a failure to

report . . . harassment,” particularly where “Title VII

expressly prohibits any retaliation against [the reporting

employee].” See Barrett, 240 F.3d at 267.

But rather than encourage the early reporting vital to

achieving Title VII’s goal of avoiding harm, the Jordan standard

deters harassment victims from speaking up by depriving them of

39
their statutory entitlement to protection from retaliation.

Such a lack of protection is no inconsequential matter, for

“fear of retaliation is the leading reason why people stay

silent instead of voicing their concerns about bias and

discrimination.” See Crawford v. Metro. Gov’t of Nashville &

Davidson Cnty., Tenn., 555 U.S. 271, 279 (2009) (internal

quotation marks omitted). Quelling that fear, the Crawford

Court extended protection “to an employee who speaks out about

discrimination not on her own initiative, but in answering

questions during an employer’s internal investigation.” See id.

at 273. To do otherwise, the Court explained, would “create a

real dilemma for any knowledgeable employee.” Id. at 279.

Namely, “[i]f the employee reported discrimination in response

to the enquiries, the employer might well be free to penalize

her for speaking up. But if she kept quiet about the

discrimination and later filed a Title VII claim, the employer

might well escape liability [by invoking the Ellerth/Faragher

defense].” Id. The Court concluded that “[n]othing in the

statute’s text or our precedent supports this catch-22.” Id.

Of course, the same can be, and has been, said about the Jordan

standard. See Jordan, 458 F.3d at 355 (King, J., dissenting)

(“As a result of today’s decision, employees in this Circuit who

experience racially harassing conduct are faced with a ‘Catch-

22.’”).

40
 Put succinctly, the Jordan standard is incompatible with

Crawford, as well as other Supreme Court decisions directing

that Title VII’s antiretaliation provision be interpreted “to

provide broad protection from retaliation.” See Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); see also,

e.g., Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173-75

(2011). As the Burlington Northern Court explained, Title VII

must be read “to provide broader protection for victims of

retaliation than for [even] victims of race-based, ethnic-based,

religion-based, or gender-based discrimination,” because

“effective enforcement could . . . only be expected if employees

felt free to approach officials with their grievances.” See 548

U.S. at 66-67 (internal quotation marks omitted)).

Finally, we need look no further than Jordan itself to

comprehend that the Jordan standard is unsuited to its purpose.

In Jordan’s presence, his co-worker made a comment that, “in a

single breath, . . . equated African-Americans with ‘black

monkeys’ and ‘black apes,’ and implied a savage, bestial sexual

predilection acutely insulting to members of the African-

American community.” See Jordan, 458 F.3d at 351 (King, J.,

dissenting). Jordan then did exactly what Title VII hopes and

expects: He reported the comment to his employers in an effort

to avert any further racial harassment. Because of his internal

complaint, however, Jordan was fired. In light of the text and

41
purpose of Title VII, as well as controlling Supreme Court and

Fourth Circuit decisions, Jordan surely merited protection from

retaliation. That is,

[w]ithout question, [the comment made by Jordan’s co-
worker] is the stuff of which a racially hostile work
environment is made. On the allegations here, it was
entirely reasonable for Jordan to believe that, in
reporting the racially charged ‘black monkeys’ comment
to his employers, he was opposing a racially hostile
work environment.

Id. at 355 (citations omitted). But, by devising and applying

the Jordan standard, we denied Jordan any legal recourse for his

retaliatory discharge. In these circumstances, the Jordan

standard plainly cannot endure.

b.

The question, then, becomes this: What is the proper

standard for determining whether an employee who reports an

isolated incident of harassment has a reasonable belief that she

is opposing a hostile work environment in progress? We conclude

that, when assessing the reasonableness of an employee’s belief

that a hostile environment is occurring based on an isolated

incident, the focus should be on the severity of the harassment.

Cf. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71

(2001) (looking to severity of single incident in evaluating

reasonableness of employee’s belief that incident created

actionable hostile environment). That assessment thus involves

factors used to judge whether a workplace is sufficiently

42
hostile or abusive for purposes of a hostile environment claim —

specifically, whether the discriminatory conduct “is physically

threatening or humiliating, or a mere offensive utterance.” See

Harris, 510 U.S. at 23. Of course, a single offensive utterance

— e.g., “simple teasing” or an “offhand comment[],” see

Faragher, 524 U.S. at 788 — generally will not create a hostile

environment without significant repetition or an escalation in

the harassment’s severity. See Ayissi-Etoh, 712 F.3d at 579

(Kavanaugh, J., concurring) (“The more severe the harassment,

the less pervasive it needs to be, and vice versa.” (internal

quotation marks omitted)). But an isolated incident that is

physically threatening or humiliating will be closer — even if

not equal — to the type of conduct actionable on its own because

it is “extremely serious.” See Faragher, 524 U.S. at 788.

Accordingly, as relevant here, an employee will have a

reasonable belief that a hostile work environment is occurring

based on an isolated incident if that harassment is physically

threatening or humiliating. This standard is consistent not

only with Clark County, but also with other Supreme Court

precedent, including Crawford and Burlington Northern. That is

so because it protects an employee like Jordan who promptly

speaks up “to attack the racist cancer in his workplace,” rather

than “remain[ing] silent” and “thereby allowing [discriminatory]

conduct to continue unchallenged,” while “forfeiting any

43
judicial remedy he might have.” See Jordan, 458 F.3d at 356

(King, J., dissenting).

In sum, under the standard that we adopt today with

guidance from the Supreme Court, an employee is protected from

retaliation for opposing an isolated incident of harassment when

she reasonably believes that a hostile work environment is in

progress, with no requirement for additional evidence that a

plan is in motion to create such an environment or that such an

environment is likely to occur. The employee will have a

reasonable belief that a hostile environment is occurring if the

isolated incident is physically threatening or humiliating. 6

6
Notably, in its brief as amicus curiae supporting Liberto,
the EEOC urges us to adopt a standard suggested by the Jordan
dissent: that an employee engages in a protected opposition
activity when she complains about an isolated incident of
harassment that would create a hostile work environment if
repeated often enough. See Jordan, 458 F.3d at 354 (King, J.,
dissenting) (“When the cumulative nature of such an environment
is properly considered, it is clear that employees are protected
under Title VII from employer retaliation if they oppose conduct
that, if repeated, could amount to a hostile work
environment.”). When the isolated incident is merely offensive
— rather than physically threatening or humiliating — the if-
repeated standard might well be appropriate. Contrary to the
argument of the defendants, it is not necessarily precluded by
the Supreme Court’s Clark County decision. That is, although
the Court concluded that the Clark County plaintiff had not
engaged in a protected opposition activity by reporting an
isolated incident that was merely offensive, the Court did so by
assessing whether the plaintiff could have reasonably believed
that incident alone created a hostile environment. See 121 S.
Ct. at 270-71. The Court did not consider whether the plaintiff
could have reasonably believed that a hostile work environment,
even though not fully formed, was in progress. In any event, we
(Continued)
44
 2.

Because the defendants contested Liberto’s retaliation

claims on the lone ground that she did not engage in a protected

activity, our analysis is limited to whether a jury could find

that Liberto reasonably believed there was a hostile work

environment in progress when she reported Clubb’s use of the

“porch monkey” slur. Applying the standard that we adopt today,

the answer plainly is “yes.” As we recognized in analyzing

Liberto’s hostile work environment claims, “porch monkey” is a

racial epithet that is not just humiliating, but “degrading and

humiliating in the extreme.” See Spriggs, 242 F.3d at 185.

Indeed, we determined that a reasonable jury could find that

Clubb’s two uses of “porch monkey” were serious enough to

engender a hostile environment. We must further conclude,

therefore, in the context of the retaliation claims, that

Liberto has made the lesser showing that the harassment was

sufficiently severe to render reasonable her belief that a

hostile environment was occurring. Accordingly, we vacate the

summary judgment award on Liberto’s retaliation claims, in

addition to her hostile work environment claims. We also

need not decide herein whether to embrace the if-repeated
standard for cases involving isolated, merely offensive
incidents of harassment, because this matter involves more
serious conduct.

45
underscore that, on remand, a jury would be entitled to

simultaneously reject the hostile work environment claims on the

ground that Clubb’s conduct was not sufficiently serious to

amount to a hostile environment, but award relief on the

retaliation claims by finding that Clubb’s conduct was severe

enough to give Liberto a reasonable belief that a hostile

environment, although not fully formed, was in progress.

C.

Our good dissenting colleague has a different view of the

controlling law, the relevant facts, and even what our en banc

majority does and does not say. See post at 68-106 (Niemeyer,

J., dissenting). With respect to the hostile work environment

claims, there is disagreement over what the Supreme Court meant

by this sentence from Faragher:

A recurring point in [our hostile environment]
opinions is that simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and
conditions of employment.

See 524 U.S. at 788 (internal quotation marks omitted). We read

that sentence to pronounce that an isolated incident of

harassment, if extremely serious, can create a hostile

environment. But, clinging to Faragher’s use of “isolated

incidents” in the plural, the dissent posits that only multiple,

“extremely serious isolated incidents . . . may produce a

hostile work environment.” Post at 88.

46
 Clearly, it is the dissent’s interpretation of Faragher —

not ours — that is untenable. To illustrate, the dissent

elsewhere observes that a hostile environment claim “must be

‘based on the cumulative effect of individual acts,’” post at 71

(quoting Morgan, 536 U.S. at 115), and that, “to be actionable

under Title VII, conduct must be so ‘severe or pervasive’ as ‘to

alter the conditions of [the victim’s] employment and create an

abusive working environment,’” id. at 70 (alteration in

original) (emphasis added) (quoting Meritor, 477 U.S. at 67).

Strikingly, the dissent does not — and surely cannot — explain

what differentiates “isolated incidents” that must be “extremely

serious,” from “individual acts” that may be “severe or

pervasive.” The dissent also quotes from Morgan that “‘a single

act of harassment may not be actionable on its own,’” id. at 71

(quoting Morgan, 536 U.S. at 115), without acknowledging the

obvious import of Morgan’s use of “may not” rather than

“cannot.” And, the dissent itself allows that a single,

isolated incident of physical violence may be actionable, id. at

88, without even attempting to reconcile that proposition with

its reading of Faragher.

Relatedly, the dissent criticizes us for “fail[ing] to note

that the portions of Faragher to which [we] cite[] were part of

the Supreme Court’s much lengthier discussion — and

substantively different message — describing the type of conduct

47
that would not violate Title VII.” Post at 69. In pursuing its

position, the dissent simply ignores Faragher’s use of “unless

extremely serious” to designate an exception to those isolated

incidents that are not unlawful on their own.

Meanwhile, the dissent repeatedly invokes Faragher’s

observation, “Mere utterance of an ethnic or racial epithet

which engenders offensive feelings in an employee would not

sufficiently alter terms and conditions of employment to violate

Title VII.” See Faragher, 524 U.S. at 787 (internal quotation

marks omitted). But the dissent overemphasizes the first part

of that sentence, at one point quoting the entire sentence while

underscoring only “[m]ere utterance of an ethnic or racial

epithet,” see post at 69, and at another point actually omitting

the phrase “which engenders offensive feelings in an employee,”

see id. at 88. Of course, the phrase “which engenders offensive

feelings in an employee” is a critical qualifier, signifying “a

mere offensive utterance” rather than a more egregious slur that

is “physically threatening or humiliating.” See Faragher, 524

U.S. at 787-88 (explaining that the circumstances relevant to

determining “whether an environment is sufficiently hostile or

abusive” include “‘whether it is physically threatening or

humiliating, or a mere offensive utterance’” (quoting Harris,

510 U.S. at 23)).

48
 In any event, the dissent consistently minimizes the

seriousness of Clubb’s two uses of the “porch monkey” slur by

deeming them to be merely offensive as a matter of law. To do

so, the dissent invents a test under which harassment cannot

rise to the level of humiliating unless it is “publicly

humiliating,” and points out that “it appears that no one heard

Clubb direct the epithet at Liberto on either occasion.” See

post at 88-89. The dissent also flouts our mandate to view the

facts in the light most favorable to Liberto, and insists that,

as a fact, “Liberto thought that she was being upbraided by a

co-worker, not her supervisor.” Id. at 89. Regardless of what

else Liberto perceived about Clubb’s status, however, there is

ample evidence in the record showing that Liberto reasonably

believed that Clubb possessed the one supervisory power that

mattered: the power to follow through on her threats to have

Dr. Berger rubber-stamp Liberto’s discharge. 7

7
Notably, although the defendants themselves failed to
argue in the district court that Clubb was not actually
Liberto’s supervisor, the dissent wanders into that issue and
declares it “highly doubtful that Clubb . . . would qualify as
Liberto’s supervisor.” See post at 84-85 (describing Clubb as
“an employee whose only influence comes from having the ear of
the company’s owner because of their personal friendship”). The
dissent’s characterization of Clubb is contradicted by portions
of the record, including the September 18, 2010 email in which
Elman, the Clarion’s General Manager, recounted responding to
Liberto’s racial harassment complaint by advising her that she
and Clubb “need[ed] to learn to work together on a professional
level and that [Clubb] was [Liberto’s] boss.” J.A. 324. Rather
(Continued)
49
 As for the retaliation claims, the dissent accuses our en

banc majority of “gratuitously proceed[ing] to adopt an

unprecedented standard . . . that is much broader than necessary

to resolve Liberto’s claim[s].” Post at 93. The dissent’s

accusation rests on the false premise that we hold as a matter

of law that a hostile work environment existed. In reality, we

simply conclude that a reasonable jury could find for Liberto

with respect to her hostile environment claims. Because it is

possible that Liberto will instead come up short at trial on

those claims, our retaliation analysis is essential. Indeed, we

have emphasized that a jury may find that Clubb’s conduct was

insufficiently serious to engender a hostile environment, but

severe enough to protect Liberto from retaliation by rendering

reasonable her belief that such an environment was underway.

than grappling with that important evidence from the Clarion’s
own General Manager, the dissent chastises us for considering
what it glibly terms “Elman’s apparent understanding of Clubb’s
relationship to Liberto.” See post at 86 n.*.

Meanwhile, two other of our good colleagues deem Clubb to
have been Liberto’s mere co-worker and thereby conclude that the
Clarion cannot be held vicariously liable for Clubb’s harassment
of Liberto. See post at 56-58 (Wilkinson, J., concurring in
part and dissenting in part, joined by Agee, J.). Those
colleagues not only disregard evidence that Clubb was Liberto’s
supervisor, but also urge affirmance of the summary judgment
award with respect to the hostile environment claims on a ground
that the defendants failed to raise or preserve in the district
court.

50
 Unfortunately, there are further instances of the dissent’s

inaccurate portrayal of today’s decision. For example, although

we observe herein that our standard “protects an employee like

Jordan” from retaliation, the dissent asserts that we nowhere

“indicate that the plaintiff in Jordan had a reasonable belief

that a hostile work environment was taking shape at the time he

reported his co-worker’s racist comment to his supervisors.”

See post at 99. So, for the sake of clarity (though too late to

benefit Jordan himself), we state in plain terms that a jury

applying our standard could have found that Jordan reasonably

believed he was opposing a hostile environment in progress.

That is because the “black monkeys” comment uttered to Jordan —

like the “porch monkey” slurs aimed at Liberto — could readily

be deemed physically threatening or humiliating.

We are entirely unswayed by the dissent’s warning that our

standard “will generate widespread litigation over the many

offensive workplace comments made everyday that employees find

to be humiliating.” See post at 93-94. Our standard is

implicated solely when an employee suffers retaliation for

engaging in an oppositional activity, and can be satisfied only

by showing the objective reasonableness of the employee’s belief

that an isolated incident of harassment was physically

threatening or humiliating. We also reject the dissent’s

prediction that our “standard will surely generate many new

51
questions” and “much hand-wringing” over which harassing conduct

qualifies as sufficiently severe. See id. at 96, 105. Judges

and juries have been identifying what is humiliating, as well as

what is physically threatening or merely offensive, since at

least 1993, when the Supreme Court explained in Harris how to

determine whether a workplace is objectively hostile or abusive

for purposes of a hostile environment claim. See 510 U.S. at

23. 8

Finally, we are perplexed and dismayed by the dissent’s

assertions that, on the one hand, “Liberto had every right to be

offended by Clubb’s use of a racial epithet and acted reasonably

and responsibly in reporting the incident,” see post at 98, and

that, on the other hand, Liberto spoke up too soon and thereby

deprived herself of protection from retaliation. As the dissent

would have it, although reporting Clubb’s slur was a sensible

thing to do, Liberto should have waited for additional

harassment to occur — but not so much harassment that the

8
Two of our colleagues issue dire warnings that today’s
decision may cause “employers [to] become speech police,”
“employees [to be] estranged from one another,” and “companies
[to] become private sector analogues of the surveillance state.”
See post at 55 (Wilkinson, J., concurring in part and dissenting
in part, joined by Agee, J.). We cannot agree, however, that by
simply protecting an employee who, for example, reports a race-
based comment that she reasonably believes to be physically
threatening or humiliating, we might somehow silence or
segregate the workforce.

52
Clarion could avoid vicarious liability because of a lack of

timely notice. Concomitantly, the dissent contends that our

decision “manifests a fundamental distrust of employers,

assuming that, once a humiliating epithet is uttered, the

development of a hostile work environment is a fait accompli —

in other words, that employers are powerless or unwilling to

prevent a descent into pervasive hostility.” Id. at 105.

Contrary to the dissent, we seek to promote the hope and

expectation — ingrained in our civil rights laws and the Supreme

Court decisions interpreting them — that employees will report

harassment early, so that their employers can stop it before it

rises to the level of a hostile environment. Employers are

powerless in that regard only if they are unaware that

harassment is occurring. But employees will understandably be

wary of reporting abuse for fear of retribution. Under today’s

decision, employees who reasonably perceive an incident to be

physically threatening or humiliating do not have to wait for

further harassment before they can seek help from their

employers without exposing themselves to retaliation.

53
 IV.

Pursuant to the foregoing, we vacate the judgment of the

district court and remand for such other and further proceedings

as may be appropriate.

VACATED AND REMANDED

54
WILKINSON, Circuit Judge, with whom AGEE, Circuit Judge, joins,
concurring in part and dissenting in part:

The remarks alleged in this Title VII action are ones that

Americans of every race and all walks of life would find so

wounding that the word offensive does not begin to describe

them. It is incidents such as these, small as they may appear,

that prevent our larger society from becoming the place of

welcome it needs to be.

The good done by the civil rights laws has been enormous

and one aim of those laws, as I understand it, is to make the

workplace an environment where Americans of every race,

religion, sex, or national origin would actually want to work.

42 U.S.C. § 2000e-2 and 2000e-3.

To say that a good workplace environment is poisoned by the

kind of remarks alleged here is an understatement. Who would

wish to get up and come to work each morning fearful of

encountering this sort of slur during the course of the working

day?

There is a countervailing danger at play in these cases,

however, namely that we not imbue the workplace with such

stringent hostile work environment requirements that employers

become speech police, that employees are estranged from one

another, and that companies become private sector analogues of

the surveillance state.

55
 Where and how to strike the balance? In this case I would

decline to hold the employer vicariously liable on the merits of

the hostile work environment claim, but I would allow Boyer-

Liberto’s retaliation claim to proceed. In fact, were the truth

of her complaint ascertained by the employer, the “retaliation”

should have taken the form of Clubb’s dismissal and not Boyer-

Liberto’s.

I.

As to the merits of the hostile work environment claim, I

would affirm the judgment of the district court on the grounds

that any other result would stretch the notion of vicarious

employer liability past the breaking point. There may be an

understandable temptation to land hard on this employer, but

there are dangers down the road. Holding employers liable for

remarks made by one of their employees where the majority points

to no prior notice to the employer and no prior employer

awareness of Clubb’s racist tendencies is all too open-ended. To

be sure, an employer is “directly liable” for a co-worker’s

unlawful harassment if “the employer was negligent with respect

to the offensive behavior.” Vance v. Ball State Univ., 133 S.

Ct. 2434, 2441 (2013). But while the majority tries to make it

appear as though some other evidence of employer malfeasance may

be somewhere in the offing, see Maj. Op. at 35 n.4, its opinion

56
is wholly focused on the two incidents and remarks at issue and

intent on directing a trial where the element of imputed

employer liability has not been placed genuinely in dispute.

Whatever hazy ground Clubb may occupy between co-worker and

supervisor, the hazards of imposing employer liability for

remarks made by mid-level workers in workforces that might

number in the hundreds or even thousands pushes imputed

liability well beyond the more cabined circumstances of physical

injury and actual adverse employment actions such as failures to

promote or discharge. Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 67-68 (2006). In this case, there were roughly

seventy-five people in the hotel’s food and beverage department

alone. J.A. 135.

Having liability hinge upon utterances, of which companies

have no prior awareness and which no victim has yet reported to

them, poses more than the threat of open-ended liability.

Because liability hinges on unanticipated utterances, it will

tend to drive employers as a protective measure into the role of

censors of all speech that even conceivably could give offense.

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)

(rejecting employer liability for “the sporadic use of abusive

language, gender-related jokes, and occasional teasing”

(citation and quotation marks omitted)). We may assuredly expect

the arrival of workplace speech codes, which, if not already

57
present, will not be long in coming. Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (noting that Title

VII was not meant to be “a general civility code for the

American workplace”). Such a heavy employer hand is a high price

to pay for the majority’s holding, and it is one that is not

congruent with Supreme Court rulings or consistent with our

freedoms.

II.

As to the Title VII retaliation claim, an employee must

show that her belief that a hostile work environment exists or

is coming into existence is objectively reasonable. See Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per

curiam) (applying the objective standard); EEOC v. Navy Fed.

Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005).

Under the circumstances presented here, Liberto’s belief

that a hostile work environment existed or was coming into

existence was objectively reasonable. The words alleged to have

been spoken by Clubb were abhorrent. Moreover, Clubb uttered the

epithet on separate occasions and directed it personally at

Liberto. And the entire course of conduct surrounding the

offensive remarks was abusive. This conduct on the part of Clubb

was enough to bring Boyer-Liberto under the protection of the

anti-retaliation provision of Title VII when she reported it. An

58
employee is not an expert in hostile work environment law. Any

reasonable person must feel free to report this sort of

vilification without being subject to retaliatory actions. An

employee must feel safe and secure in bringing an incident of

this nature to the attention of management.

Any decent management, moreover, would seemingly wish to

know of such an occurrence under its roof. Employers must have

complaint procedures for employees to utilize at an early stage

-- before harassing environments intensify and spread. See

Faragher v. City of Boca Raton, 524 U.S. 775, 806-08 (1998);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).

Employers are due adequate notice so that they may head off both

the hostile work environment and any resultant liability.

Employees benefit when an emergent hostile work environment is

nipped in the bud.

But here, too, there is a balance to be struck. The annual

number of Title VII retaliation charges filed with the EEOC has

nearly doubled since the late 1990s. Univ. of Tex. Sw. Med. Ctr.

v. Nassar, 133 S. Ct. 2517, 2531 (2013). Perhaps American

employers have become twice as likely to retaliate against

employees since 1997, but I doubt it. One cause of the dramatic

increase of retaliation claims may very well be a sub voce

chipping away at the objectively reasonable belief standard. See

Id. at 2531-32 (suggesting that “lessening the causation

59
standard” for retaliation claims “could also contribute to the

filing of frivolous claims”). The majority’s approach may very

well “raise the costs, both financial and reputational, on an

employer” where there is no true objectively reasonable belief

in the existence of a hostile workplace. Id. at 2532.

The dangers of allowing the objective standard to slip,

however, go far beyond the financial and reputational costs to

companies. Two severe, if subtle, side effects warrant

discussion: the trammeling of free speech and the construction

of workplace barriers between the races and sexes.

A.

If courts lessen their insistence on an objectively

reasonable belief in a hostile environment and permit the

reporting of all manner of perceived slights to warrant Title

VII protection, we become party to the creation of the workplace

as a zone where First Amendment values have ceased to be

observed. In the context of a hostile work environment claim, it

is “crucial” to use an objectively reasonable person standard

“to ensure that courts and juries do not mistake ordinary

socializing in the workplace” for actionable discrimination.

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81

(1998). The same is true for retaliation claims.

People will -- and should –- discuss controversial matters

at work. Some of those subjects may well pertain to race and

60
gender. Disagreement on these and other matters may be heated

and robust, but it should not on that account be reportable.

People may also say offensive things in the workplace.

Distasteful, even offensive, speech is unfortunate but it is

often a “necessary side effect[] of the broader enduring values”

that the First Amendment protects. Cohen v. California, 403 U.S.

15, 25 (1971). The premise of the First Amendment is that we as

a people not leap quickly to suppression, see Texas v. Johnson,

491 U.S. 397, 414 (1989), which may well occur if reportage and

punishment for mere speech is an omnipresent possibility.

The remarks alleged here reached the point of abusiveness

accompanied by threatening and intimidating body language. Clubb

approached so closely that Boyer-Liberto “could feel her breath”

and the shouting caused Clubb to “spit on [her] face.” J.A. 241.

Actions are one thing. The greater danger lies in

predicating liability on remarks. Not here, because Clubb’s

language, to say the very least, played “no essential part [in]

any exposition of ideas.” Chaplinksy v. New Hampshire, 315 U.S.

568, 572 (1942). But there will be many instances of

uncomfortable workplace speech that cannot on that basis be

deemed actionably hostile. It has always been the case that

“[t]o justify suppression of free speech there must be

reasonable ground to fear that serious evil will result if free

speech is practiced.” Whitney v. California, 274 U.S. 357, 376

61
(1927) (Brandeis, J., concurring) (emphasis added). A central

“function of free speech under our system of government is to

invite dispute.” Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949). Unless the “evil” is “imminent . . ., the remedy to be

applied is more speech, not enforced silence.” Whitney, 274 U.S.

at 377 (Brandeis, J., concurring). More speech means insensitive

expression in the workplace should be countered and denounced as

such. But the bedrock meaning of the First Amendment will be

lost if the expression of disfavored or objectionable positions

on sensitive and volatile issues become subjects of reportage

and sanction. If every co-worker becomes a potential informant,

does this environment not in time come to resemble societies

other than our own?

Anti-discrimination initiatives need not be at war with

free speech. The values protected by the Fourteenth Amendment

need not be inconsistent with those safeguarded by the First.

Good things happen when people, in this case company employees,

talk things out among themselves. Collective discourse and

decision-making is a matter the First Amendment holds dear.

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting) (noting that “the ultimate good desired is better

reached by free trade in ideas -- that the best test of truth is

the power of the thought to get itself accepted in the

competition of the market”). I agree with the majority that

62
“early reporting [is] vital to achieving Title VII’s goal of

avoiding harm.” Maj. Op. at 39. But the majority nowhere

acknowledges the dangers of over-reporting. It drifts ever so

casually toward draconian consequences for mere utterance and

speech. Such blindness to First Amendment values bespeaks a lack

of faith in lateral discussions which would no doubt lead

nowhere in the case of Clubb and plaintiff, but which may be far

preferable to hair-trigger reporting in working out the

misunderstandings that occur in every workplace.

Workplaces in their own way are our town squares. John

talking to Kathy may prove in the end more fruitful than John

running to a higher authority to have Kathy’s point-of-view

condemned. An objective test, not a subjective standard geared

to the most heightened sensibilities, best preserves the balance

between free speech and anti-discrimination law. The fact that

some incidents, as here, are plainly beyond the pale does not

mean we surrender hope in other instances of workers reaching

humane understandings in discussions with themselves. Turning

someone in as a course of first resort or on insubstantial

grounds may perpetuate resentment and bring the prospect of

employee dialogue to a premature end.

The law of hostile environments is not anchored in any

specific statutory provision. Rather, it was derived from Title

VII’s general prohibition of discrimination, Meritor Sav. Bank,

63
FSB v. Vinson, 477 U.S. 57, 64-67 (1986), and kept in proper

perspective, it helps prevent companies from becoming

intolerable places for racial, ethnic, and other minorities to

work. Hostile environment doctrine has also been judicially

developed almost in the manner of federal common law. It would

be wrong not to infuse this development with one of the greatest

of our enumerated constitutional values, that of freedom of

speech. Especially when the speech concerns current affairs or

other public issues, courts must take notice. See Snyder v.

Phelps, 131 S. Ct. 1207, 1215-16 (2011). The framers

“believed . . . that public discussion is a political duty.”

Whitney, 274 U.S. at 375 (Brandeis, J., concurring). Civic

health requires that Americans not be fearful of their freedoms,

whether in public or private venues, and especially a freedom so

precious as the exercise of speech. The majority unfortunately

takes less than token recognition of this value. It does not

herald for future courts the dangers of taking the American

workplace down a more autocratic path.

B.

The objects of civil rights laws are to eliminate

discrimination, bring Americans together, and break down

barriers. This purpose remains crucial, as Congress has

repeatedly attested. And yet our schools are resegregating. Our

neighborhoods in all too many instances are very far apart. The

64
workplace may be where racial interactions are most frequent,

and it will be sad if law pushes this last remaining venue into

the more separatist habits that elsewhere too frequently

prevail.

Title VII guards against this. Title VII will be counter-

productive, however, if it countenances workplaces over-reliant

on employee surveillance and reportage. Such a system erects

barriers rather than dismantles them. In an ideal world, the

races and sexes would interact spontaneously, in natural and

creative ways. There would be no single correct way to behave

around, no single correct thing to say to, a worker of another

race or gender. We are people -- human beings -- with

commonalities far more profound than superficial differences.

The majority surely agrees. Yet by focusing on sick

“bigots” who “belittle racial minorities,” Maj. Op. at 38

(quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 353-54 (4th

Cir. 2006) (King, J., dissenting)), the majority sells the more

generous potential of most Americans short.

Title VII must not contribute an added element of

inhibition when we communicate with those of another sex or

race. And yet I fear that is precisely what will happen if the

objectively reasonable standard is diluted in favor of

retaliation protection for any report, however marginal,

trivial, or unsubstantiated. The Supreme Court has made clear

65
that Title VII’s “prohibition of harassment on the basis of sex

requires neither asexuality nor androgyny in the workplace.”

Oncale, 523 U.S. at 81. But where every ambiguous or

unintentionally insensitive remark is going to be reported

upstairs, employees naturally will seek to cluster with those

who look, act, and think “like themselves.” Instead of an

interactive community in which individual attributes can be

recognized, understood, celebrated, and embraced, the result

will be a more fractious and walled-off working environment

where noxious stereotypes persist. Keeping interracial distance

and maintaining interracial silence will become the safest

course, the easiest way to avoid a blot on one’s record that

comes even with a co-worker’s erroneous report. This road is in

no one’s interest, certainly not ours as a nation or as

individuals in the simple search for friends. We must not become

others to ourselves.

III.

The search for balance is important in law, lest the aims

of one of America’s greatest Acts be compromised by a needlessly

censored and suspicious workplace. I believe the majority is

right in allowing plaintiff’s retaliation claim to proceed, but

wrong in not affirming the district court on the merits of the

Title VII claim. More than that, I regret that my friends in the

66
majority did not do more to recognize that this is an equation

with two sides, an area with more than one dimension. The

harmony of balance is nowhere to be found.

67
NIEMEYER, Circuit Judge, dissenting:

The majority holds that an employee’s use of the term

“porch monkey” twice in a 24-hour period, when talking to a

fellow employee about a single workplace incident, transformed

the workplace into a racially hostile environment and thereby

effected a discriminatory change in the terms and conditions of

the offended employee’s employment, in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.

It holds further that the offended employee could therefore have

had a reasonable belief “that a hostile work environment [was]

in progress,” ante, at 44 (emphasis added), such that her

opposition to the incident justified her retaliation claim

against her employer. It reaches these unprecedented

conclusions by relying on selected and distilled snippets from

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), which,

according to the majority, justify the conclusion that “an

‘isolated incident’ of harassment can ‘amount to discriminatory

changes in the terms and conditions of employment,’ if that

incident is ‘extremely serious,’” ante, at 26 (quoting Faragher,

524 U.S. at 788).

Faragher, however, does not support the majority’s reading

of it, and the majority’s conclusions are otherwise without

precedent. First, in the very quotation relied on by the

majority, the Faragher Court noted that “isolated incidents” --

68
using the plural -- might, if “extremely serious,” satisfy the

severity requirement for racial harassment. 524 U.S. at 788.

To rationalize its holding, the majority thus reads the plural

“incidents” in Faragher to refer only to a “single incident.”

Second, and more importantly, the majority fails to note

that the portions of Faragher to which it cites were part of the

Supreme Court’s much lengthier discussion -- and substantively

different message -- describing the type of conduct that would

not violate Title VII. In that discussion, the Court drew on

several opinions from the courts of appeals and noted, for

instance, that the “‘mere utterance of an ethnic or racial

epithet which engenders offensive feelings in an employee’ would

not sufficiently alter terms and conditions of employment to

violate Title VII.” Faragher, 524 U.S. at 787 (emphasis added)

(quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)); see

also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 66 (1986)

(same). The Court also cited approvingly to a text on

discrimination law which observed, in part, that “a lack of

racial sensitivity does not, alone, amount to actionable

harassment.” Id. (quoting 1 Barbara Lindemann & Paul Grossman,

Employment Discrimination Law 349 (3d ed. 1996)). Finally, the

Court summarized some of its earlier rulings in the very

paragraph relied on by the majority:

69
 So, in Harris [v. Forklift Systems, Inc., 510 U.S. 17
(1993)], we explained that in order to be actionable
under the statute, a sexually objectionable
environment must be both objectively and subjectively
offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact
did perceive to be so. We directed courts to
determine whether an environment is sufficiently
hostile or abusive by looking at all the
circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably
interferes with an employee’s work performance. Most
recently, we explained that Title VII does not
prohibit genuine but innocuous differences in the ways
men and women routinely interact with members of the
same sex and of the opposite sex. A recurring point
in these opinions is that simple teasing, off-hand
comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in
the terms and conditions of employment.

Id. at 787-88 (emphasis added) (citations and internal quotation

marks omitted).

Without the abridged Faragher snippets, which fail to

capture that case’s larger message, the majority is left with

virtually no support for its holdings and certainly none from

the language of Title VII or any Supreme Court decision

construing it. Indeed, the Supreme Court has steadfastly

maintained that, to be actionable under Title VII, conduct must

be so “severe or pervasive” as “to alter the conditions of [the

victim’s] employment and create an abusive working environment.”

Meritor, 477 U.S. at 67 (alteration in original) (quoting Henson

v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)) (internal

70
quotation marks omitted). And because hostile work environment

claims by their “very nature involve[] repeated conduct,” the

Court has further recognized -- and the majority acknowledges,

see ante, at 26 -- that “a single act of harassment may not be

actionable on its own.” Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 115 (2002). Instead, such claims must be “based

on the cumulative effect of individual acts.” Id.

To be absolutely clear, this case does not present the

question of whether an employee should be allowed to call a

fellow employee a “porch monkey.” Such a racially derogatory

and highly offensive term does not belong in the workplace, and

I condemn it. Nor does this case present the question of

whether an employee, justifiably offended by being called a

“porch monkey,” should report such an incident to management.

Rather, the issues here are substantially narrower.

Framed by principles of well-established law, the first

question in this case is whether a reasonable jury could find

that an employee’s use of the term “porch monkey” twice in a 24-

hour period, when talking to a fellow employee about a single

incident, could objectively be considered so severe as to

transform the workplace into a racially hostile environment,

thereby effecting a discriminatory change in the terms and

conditions of her employment. And if we were to conclude that a

reasonable jury would be unable to make such a finding on the

71
summary judgment record in this case, then the next question

would be whether a reasonable jury could find that the offended

employee engaged in protected activity when she reported the

conduct because she reasonably believed that her employer had

committed or was in the process of committing an employment

practice that was made unlawful by Title VII. See 42 U.S.C.

§ 2000e-3(a).

I respectfully submit that the pertinent law, when applied

to the facts in the record, requires a negative response to both

questions. I would therefore affirm the district court’s

similar conclusions.

I

Reya Boyer-Liberto, an African-American woman, began

working at the Clarion Resort Fontainebleau Hotel (the

“Clarion”) in Ocean City, Maryland, on August 4, 2010. The

Clarion is a typical oceanfront hotel, with several restaurants,

bars, a nightclub, and banquet facilities, and it typically

employs about 75 people in its Food and Beverage Department.

Liberto started as a morning hostess in the hotel’s main

restaurant, but she proceeded to work in many of the hotel’s

other Food and Beverage positions, including serving,

bartending, and working banquets. According to Leonard Berger,

the Clarion’s owner, Liberto struggled in all of the positions

72
to which she was assigned, and he terminated her employment on

September 21, 2010, because she “had failed at four jobs” and

“[t]here [were] no more places for her.”

During her employment, Liberto interacted with Trudi Clubb,

a white woman, who was a longtime employee at the Clarion and a

friend of Berger’s. Clubb worked part-time as an evening

restaurant manager, and she described her responsibilities in

that role as “getting things going for the early part of the

day, seeing that the crew is well-equipped and ready to present

themselves to the customers, getting the tables ready, getting

the buffet . . . ready, overseeing all the items that need to be

done,” and generally helping out as needed. Clubb directly

reported to Richard Heubeck, the Clarion’s Food and Beverage

Director, as well as Mark Elman, the hotel’s General Manager.

Clubb did not participate in hiring decisions, and there is no

indication in the record that she was authorized to fire,

demote, or otherwise take tangible employment actions against

other members of the Clarion’s staff.

In any event, whatever the exact nature of Clubb’s role at

the Clarion, Liberto testified during her deposition that she

never understood Clubb to be a supervisor or even a manager. To

be sure, Liberto believed that Clubb, who had worked at the

Clarion for close to 20 years and had a longstanding

relationship with Berger, had power that she, a brand-new

73
employee, did not have. But Liberto stated that she reported to

Heubeck and to a manager named Jamie Avery, and she was adamant

that she never thought of Clubb as her manager. Instead, her

“understanding of . . . Clubb was that she was basically a

friend of Dr. Berger’s that was there to greet people and just

to be a smiling face” -- in other words, that Clubb was merely a

“glorified hostess.” Indeed, Liberto stated that she was “told

by everyone” that she should just “humor” Clubb and that Avery

specifically told her “not to go to [Clubb] because [Clubb] did

not have the power to do voids or make decisions.” She

explained that, although she listened to Clubb, she did so only

to the extent that she had “to be respectful and listen to

everyone [she] work[ed] with.” And while Clubb would

occasionally ask Liberto or other employees to do tasks, Liberto

testified that “it was not a regular routine . . . [for Clubb

to] instruct[]” other employees and that Clubb did not correct

her work.

Liberto testified that, soon after she had started working

at the Clarion, she felt as though Clubb had “singled [her] out”

and had threatened to take advantage of her personal

relationship with Berger to make trouble for Liberto. But the

incident central to this action occurred more than a month after

Liberto had been hired.

74
 Late on the night of September 14, Liberto was serving

drinks when a customer ordered a “Hula Hula,” a cocktail that

was particularly time-consuming to make. When the bartender at

the restaurant’s primary bar refused to make the drink, Liberto

walked around to the Clarion’s “pub bar” to order the drink

there. Once the drink was ready, Liberto passed through the

kitchen on her way back to the dining room, even though that was

a much longer route, so as to avoid the primary bartender who

refused to make the “Hula Hula.” As she did so, Clubb yelled

out to Liberto that she was not supposed to cut through the

kitchen, but Liberto did not hear Clubb. Clubb then approached

Liberto as she was preparing the customer’s check, yelling at

Liberto for ignoring her and calling Liberto “deaf.” Liberto

said that the distance between the two was close enough that she

could “feel [Clubb’s] breath” and that spittle from Clubb’s

mouth was hitting her. Liberto shook her head and said “okay,”

but largely went about her work, which made Clubb more agitated.

As the episode concluded and Clubb was walking away, Clubb said

that she was “going to make [Liberto] sorry” and called Liberto

either a “damn or dang, porch monkey.”

At the beginning of her shift on September 15, Liberto went

to Heubeck’s office to complain about Clubb’s conduct. During

the meeting, Clubb came in and said to Liberto, “I need to speak

to you, little girl.” Liberto told Clubb that she was currently

75
speaking with Heubeck, but Clubb responded that she was “more

important.” Liberto and Clubb then sat down at a table outside

Heubeck’s office, and Clubb scolded Liberto for “abandoning

[her] station” the previous night. As this meeting broke up,

Clubb said that “she was going to go to Dr. Berger” and “teach

[Liberto] a lesson.” Using a raised voice, Clubb again called

Liberto a “porch monkey.”

A couple of days later, on September 17, 2010, Liberto

spoke by telephone with Nancy Berghauer, the Clarion’s Human

Resources Director, regarding Clubb. Berghauer made typewritten

notes of the conversation and forwarded them to Berger and

Elman. The next day, September 18, Elman met with Liberto to

discuss the situation and to ensure that Berghauer’s notes were

accurate. That same day, Heubeck met with Clubb to discuss the

incident, and Clubb denied Liberto’s allegations. Heubeck

nonetheless issued Clubb a written warning.

When, on September 17, Berger learned about the conflict

between Clubb and Liberto, he asked Heubeck to update him on

“exactly what was going on,” and he also asked about Liberto’s

job performance. Heubeck reported that Liberto had so far

performed poorly in every job to which she had been assigned.

The next afternoon, Berger met with Elman to review Liberto’s

work file and discovered that Liberto had failed the Clarion’s

bartending test “miserably.” When Berger indicated that he

76
thought the Clarion should terminate Liberto’s employment, Elman

and Berghauer indicated that doing so “could create a situation”

because of Liberto’s complaint. Berger replied that “there’s

not going to be any good time to let her go. The situation will

be there.” After further consulting Heubeck, Berger made the

final decision to terminate Liberto’s employment, and Liberto

was notified of the decision on September 21. Clubb was not

involved in the decision, only learning of it a week later.

Berger acknowledged in his deposition that Liberto’s complaint

prompted him to take a look at her record, but he asserted that

his decision to fire her “had nothing to do with her complaint”

and was instead based solely on her poor performance.

Liberto filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) on September 23,

2010, alleging discrimination based on her race and retaliation

based on her engagement in protected activity, in violation of

Title VII. The EEOC issued Liberto a Notice of Right to Sue,

following which Liberto commenced this action.

In her complaint, Liberto asserted four claims for relief:

two counts of racial discrimination by virtue of a hostile work

environment, in violation of Title VII (Count I) and 42 U.S.C.

§ 1981 (Count III), and two counts of retaliation, also in

violation of Title VII (Count II) and § 1981 (Count IV).

Liberto filed her Title VII claims against only the

77
Fontainebleau Corporation, trading as the Clarion Resort

Fontainebleau Hotel, but named both the Fontainebleau

Corporation and Berger as defendants in her § 1981 claims.

Following discovery, the defendants filed a motion for

summary judgment. Taking Liberto’s deposition testimony as

true, the district court held that the offensive conduct was too

isolated to support Liberto’s claims for discrimination and

retaliation. Accordingly, by order dated April 4, 2013, the

court entered judgment in favor of the defendants. This appeal

followed.

II

In holding that the district court erred by entering

summary judgment for the defendants on Liberto’s hostile work

environment claims, the majority extends Title VII liability

beyond the statute’s textual scope and beyond what the Supreme

Court has recognized in construing the statute.

The governing principles are well established. Title VII

makes it “an unlawful employment practice for an employer . . .

to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). “This provision

obviously prohibits discrimination with respect to employment

78
decisions that have direct economic consequences, such as

termination, demotion, and pay cuts.” Vance v. Ball State

Univ., 133 S. Ct. 2434, 2440 (2013). Since 1986, however, the

Supreme Court has recognized that this provision “not only

covers ‘terms’ and ‘conditions’ in the narrow contractual

sense,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

78 (1998), but also forbids the “practice of creating a working

environment heavily charged with . . . discrimination,” Meritor,

477 U.S. at 66 (quoting Rogers, 454 F.2d at 238); see also

Harris, 510 U.S. at 21 (1993) (“The phrase ‘terms, conditions,

or privileges of employment’ evinces a congressional intent to

strike at the entire spectrum of disparate treatment . . . in

employment, which includes requiring people to work in a

discriminatorily hostile or abusive environment” (citation and

some internal quotation marks omitted)). But in order to ensure

that a cause of action based on an alleged hostile work

environment is justified by the statute’s text, the Supreme

Court has emphasized time and time again that the underlying

harassment must be “so ‘severe or pervasive’ as to ‘alter the

conditions of [the victim’s] employment.’” Faragher, 524 U.S.

at 786 (alteration in original) (emphasis added) (quoting

Meritor, 477 U.S. at 67); see also, e.g., Vance, 133 S. Ct.

at 2441 (“In [hostile work environment] cases, we have held, the

plaintiff must show that the work environment was so pervaded by

79
discrimination that the terms and conditions of employment were

altered”); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752

(1998) (recognizing that only harassing conduct that is “severe

or pervasive” can effect a “constructive alteration[] in the

terms or conditions of employment” and thus become “cognizable

under Title VII”); Oncale, 523 U.S. at 81 (emphasizing that

Title VII’s “prohibition of harassment . . . forbids only

behavior so objectively offensive as to alter the ‘conditions’

of the victim’s employment”); Harris, 510 U.S. at 21 (“When the

workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment, Title VII is violated” (citations

and internal quotation marks omitted)).

This demanding standard thus requires more than “conduct

that is merely offensive.” Harris, 510 U.S. at 21; see also

Oncale, 523 U.S. at 80 (noting that Title VII will not become “a

general civility code for the American workplace” so long as

courts pay “careful attention to the requirements of the

statute”). Indeed, the Supreme Court has specifically

recognized that the “‘mere utterance of an ethnic or racial

epithet which engenders offensive feelings in an employee’ would

not affect the conditions of employment to [a] sufficiently

significant degree to violate Title VII.” Meritor, 477 U.S.

80
at 67 (emphasis added) (quoting Rogers, 454 F.2d at 238); see

also Harris, 510 U.S. at 21. Similarly, the Court has stressed

that “simple teasing, offhand comments, and isolated incidents

(unless extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment.’” Faragher,

524 U.S. at 788 (citation and some internal quotation marks

omitted). It should thus come as no surprise that the Court has

described the “very nature” of a hostile work environment claim

as “involv[ing] repeated conduct.” Morgan, 536 U.S. at 115; see

also id. (“The ‘unlawful employment practice’ [at issue in a

hostile work environment claim] . . . cannot be said to occur on

any particular day. It occurs over a series of days or perhaps

years and, in direct contrast to discrete acts, a single act of

harassment may not be actionable on its own. Such claims are

based on the cumulative effect of individual acts.” (Citation

omitted)).

Finally, the Court has emphasized that the impact of

offensive workplace conduct on an employee’s work environment

cannot be “measured in isolation.” Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 270 (2001) (per curiam). Instead, courts

must determine “whether an environment is sufficiently hostile

or abusive [to support a claim] by ‘looking at all the

circumstances,’ including the ‘frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

81
humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.’”

Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).

Under these controlling principles, Clubb’s alleged use of

the term “porch monkey” twice in less than 24 hours when talking

about a single incident was, as a matter of law, not so severe

or pervasive as to produce a racially hostile work environment

that changed the terms and conditions of Liberto’s employment.

There is no suggestion by the majority that the alleged

harassment was sufficiently pervasive to qualify -- nor could

there be. As such, this case falls outside the heartland of

hostile work environment claims, the “very nature [of which]

involves repeated conduct.” Morgan, 536 U.S. at 115. Instead,

the only question at this juncture is whether a jury that

believed Liberto’s description of events could find that Clubb’s

conduct was so severe that it altered the terms and conditions

of Liberto’s employment by creating a work atmosphere that was

objectively racially hostile. The answer is plainly no. To be

sure, the term “porch monkey” is an odious racial epithet, and

any reasonable person in Liberto’s position would of course be

offended by its use. But the “‘mere utterance of an ethnic or

racial epithet,’” which offends an employee, does not “affect

the conditions of employment to [a] sufficiently significant

degree to violate Title VII.” Meritor, 477 U.S. at 67 (quoting

82
Rogers, 454 F.2d at 238); see also Harris, 510 U.S. at 21. In

short, Liberto has not presented evidence from which a

reasonable jury could find that her workplace was “permeated

with ‘discriminatory intimidation, ridicule, and insult’ that

[was] ‘sufficiently severe or pervasive to alter the conditions

of [her] employment and create an abusive working environment.’”

Harris, 510 U.S. at 21 (citation omitted) (quoting Meritor, 477

U.S. at 65, 67).

The majority’s conclusion to the contrary rests on two

distortions, one factual and one legal. First, the majority

brazenly distorts the facts contained in the summary judgment

record regarding Liberto’s understanding of Clubb’s role at the

Clarion. The majority begins by stating that the current record

does not establish “whether Clubb was actually Liberto’s

supervisor or simply her co-worker.” Ante, at 30 (emphasis

added). But nonetheless it then proceeds to “deem Clubb to have

been Liberto’s supervisor” for the purpose of “gauging the

severity of Clubb’s conduct,” ante, at 32, on the theory that

Clubb portrayed herself as having the ability to get Liberto

fired by taking advantage of her friendship with Berger. From

this, the majority goes yet further and presumes that Liberto

must have believed that Clubb was effectively her supervisor,

thus lending a “particularly threatening character” to Clubb’s

83
conduct. Ante, at 32 (quoting Ellerth, 524 U.S. at 763)

(internal quotation marks omitted).

There are, however, two significant problems with the

majority’s approach. First, it is highly doubtful that Clubb,

who may have wielded influence on the Clarion’s owner as a

result of a personal relationship but who lacked direct

authority to take tangible employment actions or even to

recommend formally that such actions be taken, would qualify as

Liberto’s supervisor. Indeed, the Supreme Court recently

clarified what makes an employee a “supervisor” in the context

of hostile work environment claims, holding that the critical

consideration is whether “he or she is empowered by the employer

to take tangible employment actions against the victim.” Vance,

133 S. Ct. at 2439 (emphasis added). In so holding, the Court

explained that this definition would typically allow an

employee’s supervisory status to be “readily determined,

generally by written documentation.” Id. at 2443; see also id.

at 2449 (“The interpretation of the concept of a supervisor that

we adopt today is one that can be readily applied”). The Court

indicated that employees can still qualify as supervisors even

if their “decisions [are] subject to approval by higher

management.” Id. at 2446 n.8. It similarly noted that if the

individuals vested with decisionmaking power “have a limited

ability to exercise independent discretion when making

84
decisions” and must instead “rely on [the recommendations of]

other workers who actually interact with the affected employee”

then “the employer may be held to have effectively delegated the

power to take tangible employment actions to the employees on

whose recommendations [the individual formally vested with

decisionmaking authority] relies.” Id. at 2452. But both of

those situations are a far cry from an employee whose only

influence comes from having the ear of the company’s owner

because of their personal friendship.

Moreover, even setting that issue aside, the majority’s

assumption that Liberto must have perceived Clubb as her

supervisor flies in the face of Liberto’s own deposition

testimony about her understanding of Clubb’s place in the

Clarion’s hierarchy. When asked about her understanding of

Clubb’s role, Liberto responded, “My understanding of Trud[i]

Clubb was that she was basically a friend of Dr. Berger’s that

was there to greet people and just to be a smiling face.” She

added, “I was told by everyone, oh, just, you know, humor

[Clubb]. . . . [T]hat’s pretty much what everyone would say

about her.” When pressed, she was adamant that she did not

understand Clubb to be a manager:

Q. Isn’t it true that you were told that [Clubb] was
the restaurant manager?

A. Never.

85
 Q. Is it your -- is it your testimony that you did
not know Trud[i] Clubb was the restaurant manager?

A. Absolutely that is my testimony.

Q. You never knew throughout your entire employment
with the Clarion that she was a manager?

A. Never. I reported to Jamie [Avery], and Jamie,
as a matter of fact, told me not to go to [Clubb]
because [Clubb] did not have the power to do voids or
make decisions. I had to report to Jamie or Richard
[Heubeck]. And at the time [Clubb] did not hold any
management cards or keys as Jamie did.

(Emphasis added). And when asked whether she “thought [she] had

to listen to [Clubb],” Liberto’s response was just that she

“ha[d] to be respectful and listen to everyone [she] work[ed]

with.” ∗

The majority’s conclusion that we should “deem Clubb to

have been Liberto’s supervisor” for the purpose of “gauging the

severity of Clubb’s conduct” simply cannot be reconciled with

this testimony. To the contrary, Liberto’s understanding of

∗
In support of its dubious contention that Liberto
perceived Clubb to be in a position to have her employment
terminated, the majority points to a September 18, 2010 email
from Elman to Heubeck and Berghauer in which Elman recounted his
meeting earlier that day with Liberto. See ante, at 10. Elman
wrote that he had informed Liberto that Clubb was her “boss.”
But as the majority itself acknowledges, at this stage of the
case, we must accept the version of events Liberto recited in
her deposition testimony. See ante, at 4 n.1. And Liberto’s
testimony contradicts Elman’s apparent understanding of Clubb’s
relationship to Liberto. Moreover, in light of the adamancy
with which Liberto testified that she “never” understood Clubb
to be a manager, we should not use Elman’s email to refute
Liberto’s clearly stated understanding.

86
Clubb as a “glorified hostess” who everyone “humor[ed]”

substantially lessens the impact that Clubb’s isolated

statements could have had on Liberto’s work environment. See

ante, at 27 (“[A] supervisor’s use of [a racial epithet] impacts

the work environment far more severely than use by co-equals”

(second alteration in original) (quoting Rodgers v. Wis. Life

Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)) (internal quotation

marks omitted).

In addition to relying on a blatant mischaracterization of

Liberto’s understanding of Clubb’s role at the Clarion, the

majority’s conclusion that Liberto’s hostile work environment

claims should reach a jury also rests on a faulty interpretation

of a handful of words from the Supreme Court. Specifically, the

majority places a great deal of emphasis on the Court’s

observation in Faragher that “simple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the ‘terms and conditions of

employment.’” 524 U.S. at 788 (emphasis added) (citation and

some internal quotation marks omitted). Indeed, the majority’s

holding, distilled to its essence, rests entirely on its

conclusion that this is “the type of case contemplated in

Faragher where the harassment, though perhaps ‘isolated,’ can

properly be deemed to be ‘extremely serious.’” Ante, at 34.

87
 But in Faragher, the Supreme Court referred to “incidents,”

524 U.S. at 788, not to a single incident. And five years

later, the Court in Morgan confirmed that “repeated conduct” is

the stuff of a hostile work environment. 536 U.S. at 115

(emphasis added). Moreover, while the Faragher Court did not

elaborate on what it envisioned as the kind of extremely serious

isolated incidents that may produce a hostile work environment,

we know from Meritor and Harris that such incidents cannot be

the “mere utterance of an ethnic or racial epithet.” Meritor,

477 U.S. at 67 (quoting Rogers, 454 F.2d at 238) (internal

quotation marks omitted). As the Court has made clear, the

making of such a statement in the workplace, although highly

offensive, “does not sufficiently affect the conditions of

employment to implicate Title VII.” Harris, 510 U.S. at 21. It

is true that Clubb’s alleged conduct was reprehensible. But it

involved no physical assault or threat of physical harm. Cf. 3

Lex K. Larson, Employment Discrimination § 46.05[3][b], at 46-82

(2d ed. 2012) (noting that “a single incident of physical

assault against a co-worker that is motivated by

[discriminatory] animus can qualify as severe enough to

constitute an alteration of the co-worker’s conditions of

employment”). Moreover, even though the first encounter took

place in a crowded dining room, it appears that no one heard

Clubb direct the epithet at Liberto on either occasion,

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indicating that the name-calling was not publicly humiliating.

And again, Liberto thought that she was being upbraided by a co-

worker, not her supervisor. Taken together, these

considerations show that, as a matter of law, Clubb’s alleged

conduct did not amount to the “extremely serious” “isolated

incidents” that the Faragher Court envisioned as being capable

of effecting a “discriminatory change[] in the ‘terms and

conditions of [the plaintiff’s] employment.’” 524 U.S. at 788.

The majority acknowledges that this case marks the first

time that our court has concluded that a reasonable jury could

find the presence of a hostile work environment based on what

was, at most, two repeated statements relating to a single

incident. See ante, at 34. What the majority does not

acknowledge, however, is that today’s decision makes our court

an outlier among the other courts of appeals. And instead of

being straightforward about that fact, the majority attempts to

bolster its conclusion with citations to the Eleventh Circuit’s

decision in Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240 (11th

Cir. 2014), and the D.C. Circuit’s decision in Ayissi-Etoh v.

Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013). See ante, at 33-34.

But both cases involved conduct more pervasive and/or more

severe than that alleged by Liberto here.

In Adams, one of the plaintiffs alleged that his supervisor

carved the slur “porch monkeys” into the aluminum of the ship on

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which they were working, and the Eleventh Circuit observed that

that “isolated act” was “severe.” 754 F.3d at 1254. But the

same plaintiff also alleged that he “saw one coworker wear a

shirt with a Confederate flag”; that he “regularly saw racist

graffiti in the men’s restroom”; and that when he reported the

racist graffiti, his supervisor responded by saying that “it’s

always been like that and if [he] didn’t like it [he could]

quit.” Id. at 1253 (alterations in original) (internal

quotation marks omitted). It was based on the totality of these

allegations that the Eleventh Circuit concluded that “the

harassment [the plaintiff] experienced was frequent and severe,”

such that “[a] reasonable jury could find that [his] work

environment was objectively hostile.” Id. at 1253-54 (emphasis

added).

Similarly, the harassment in Ayissi-Etoh was both more

pervasive and more severe than the harassment at issue here. In

that case, the plaintiff -- an African-American senior financial

modeler -- asked his company’s Chief Audit Executive why he had

not received a raise in conjunction with a recent promotion.

712 F.3d at 574-75. In response, the Executive told him, “For a

young black man smart like you, we are happy to have your

expertise; I think I’m already paying you a lot of money.” Id.

at 575 (internal quotation marks omitted). Several months

later, the plaintiff was discussing his work responsibilities

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with the company’s Vice President of Internal Audit when the

meeting “became heated” and the Vice President yelled at him,

“Get out of my office nigger.” Id. Although the plaintiff

missed work and was diagnosed with an anxiety disorder, he was

forced to continue working with the Vice President during the

ensuing three-month investigation. Id. Based on this evidence,

the D.C. Circuit held that the plaintiff was entitled to a jury

trial on his hostile work environment claim. These

circumstances in Ayissi-Etoh are readily distinguishable from

those presented here. First, as the court in Ayissi-Etoh noted,

the hostile work environment was precipitated not by a single

event, but rather by two independent statements made by two

different high-ranking company officials who were both

indisputably supervisors of the plaintiff. Id. at 577-78.

Those statements ultimately led to psychological problems and

directly caused the plaintiff to miss work. Id. at 577.

Second, the racist comments were made during conversations about

the plaintiff’s pay and work assignments, thus increasing the

statements’ ability to “alter the conditions of the victim’s

employment.” Harris, 510 U.S. at 21. By contrast, in the case

at hand, (1) there was only one incident involving one alleged

harasser; (2) the alleged harasser was perceived by the

plaintiff to be a “glorified hostess” with no “power to . . .

make decisions”; and (3) although the alleged harasser denied

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making the offensive statement, the employer promptly issued her

a written reprimand, warning her “to be cautious [that] the

language or phrases [that] she uses can not [sic] be perceived

as racist or derogatory.”

For the reasons given, Clubb’s alleged use of the term

“porch monkey” twice in less than 24 hours when talking about a

single incident was not, as a matter of law, sufficiently severe

or pervasive to create a racially hostile work environment that

altered the terms and conditions of Liberto’s employment. I

would therefore affirm the district court’s summary judgment on

Liberto’s Title VII hostile work environment claim.

For the same reasons, I would also affirm the district

court’s summary judgment on Liberto’s hostile work environment

claim under 42 U.S.C. § 1981. See Spriggs v. Diamond Auto

Glass, 242 F.3d 179, 184 (4th Cir. 2001) (recognizing that

hostile work environment claims under Title VII and § 1981 are

governed by the same principles).

III

If, as the majority holds, Clubb’s twice calling Liberto a

“porch monkey” in connection with a single workplace incident

was a practice made unlawful by Title VII, it would necessarily

follow that Liberto also stated a retaliation claim, for such a

claim arises when an employee opposes any practice made an

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unlawful practice by Title VII and therefore is subjected to an

adverse employment action. See ante, at 36. The majority could

have ended its retaliation claim analysis without saying more.

But it did not. Instead, it gratuitously proceeded to adopt an

unprecedented standard for retaliation claims that is much

broader than necessary to resolve Liberto’s claim. In doing so,

it also unnecessarily overruled part of our decision in Jordan

v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).

A

As to its new, broad standard for retaliation claims, the

majority moves far beyond the scope of any statutory language or

any Supreme Court precedent to conclude that, even when an

employee opposes a single offensive incident, she has “a

reasonable belief that a hostile work environment is occurring”

whenever the incident is humiliating. Ante, at 43; see also

ante, at 44-45. Applying that standard, the majority concludes

that because “‘porch monkey’ is a racial epithet that is not

just humiliating, but ‘degrading and humiliating in the

extreme,’” Liberto was necessarily opposing a hostile work

environment that was “in progress” when she brought the racial

slurs to management’s attention. Ante, at 45 (quoting Spriggs,

242 F.3d at 185). Undoubtedly, this gratuitous and untenable

holding will generate widespread litigation over the many

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offensive workplace comments made everyday that employees find

to be humiliating.

Turning to the statute, as we must, Title VII’s

antiretaliation provision makes it unlawful “for an employer to

discriminate against any of his employees . . . because [the

employee] has opposed any practice made an unlawful employment

practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Read most

naturally, this provision provides protection from retaliation

to an employee who has opposed an employment practice that is

actually unlawful under Title VII, including her employer’s

maintenance of a racially hostile work environment. And reading

§ 2000e-3(a)’s language generously to give effect to its

purpose, we have held that an employee also engages in protected

activity when she opposes an employment practice that she

reasonably believes to be unlawful, see EEOC v. Navy Fed. Credit

Union, 424 F.3d 397, 406-07 (4th Cir. 2005), although the

Supreme Court has not yet gone so far. Specifically, in

Breeden, 532 U.S. at 270, the Court declined “to rule on the

propriety of [the Ninth Circuit’s] interpretation” of § 2000e-

3(a) as “protect[ing] employee ‘oppos[ition]’ not just to

practices that are actually ‘made . . . unlawful’ by Title VII,

but also to practices that the employee could reasonably believe

were unlawful,” “because even assuming [that its interpretation]

is correct, no one could reasonably believe that the incident

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[at issue] violated Title VII.” Finally, we have gone one step

further, recognizing that an employee is protected from

retaliation if, at the time of her complaint, she had “an

objectively reasonable belief in light of all the circumstances

that a Title VII violation has happened or is in progress.”

Jordan, 458 F.3d at 341 (emphasis added).

Under the Jordan standard, when an employee’s complaint

relates to another employee’s harassing conduct, we do not

require the harassment to have already risen to the level

actionable under Title VII in order for her opposition activity

to be protected from retaliation. But when the offending

conduct has not risen to the level of a practice made unlawful

by Title VII, we also recognized that it would be inappropriate

to “simply assume, without more, that the opposed conduct

[would] continue or [would] be repeated unabated.” Jordan, 458

F.3d at 341. Instead, we held that in this incipient stage, a

plaintiff must be able to point to evidence that “reasonably

supports the inference” that the conduct being objected to was

“likely to recur at a level sufficient to create a hostile work

environment.” Id. In other words, for an employee’s report of

objectionable conduct that has not yet become unlawful under

Title VII to qualify as protected activity, the employee must,

at the very least, have an objectively reasonable belief that a

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hostile work environment would result, “based on circumstances

that the employee observes and reasonably believes.” Id.

Here, the majority adopts a standard far beyond that which

we recognized in Jordan and far beyond what any court of appeals

has recognized. It holds that an employee’s single complaint

about a single incident, regardless of whether the incident is

actually unlawful under Title VII or whether the employee

reasonably believes that the incident is likely to recur, can be

the basis for a legitimate retaliation claim, so long as the

conduct is humiliating. See ante, at 43-45. This new standard

will surely generate many new questions about which offensive

workplace comments are objectively humiliating and lead to an

expansion of litigation far beyond Title VII’s design.

I would conclude in this case that the district court

correctly entered summary judgment for the defendants on

Liberto’s retaliation claim because, as a matter of law, she did

not oppose activity that Title VII protects from retaliation

when she reported Clubb’s conduct to the Clarion’s Human

Resources Director. In light of all the circumstances, Clubb’s

use of an offensive racial epithet twice in less than 24 hours

was insufficiently severe to give Liberto an objectively

reasonable belief that she was complaining about the presence of

a racially hostile work environment, rather than simply about

another employee’s inappropriate conduct. Certainly, Liberto

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could have reasonably concluded from Clubb’s demeaning statement

that Clubb herself was a racist. But the fact that a single

employee has revealed herself through an isolated incident to be

bigoted does not translate into an objectively reasonable belief

that the workplace itself has become abusive to employees

because of their race. Cf. Butler v. Ala. Dep’t of Transp., 536

F.3d 1209, 1214 (11th Cir. 2008) (“[N]ot every act by an

employee in opposition to racial discrimination is protected.

The opposition must be directed at an unlawful employment

practice of an employer, not an act of discrimination by a

private individual” (emphasis added) (quoting Little v. United

Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.

1997)) (internal quotation marks omitted).

Moreover, Clubb’s statements were, as a matter of law, too

isolated to give Liberto an objectively reasonable belief that

the offensive conduct was likely to ripen into a hostile work

environment. Liberto has not identified any evidence in the

record suggesting that workplace racism was afoot prior to

Clubb’s statements, nor any evidence suggesting that she had

reason to believe that her supervisors and co-workers would

tolerate such conduct or permit it to recur. Indeed, after

Liberto reported the incident, the Clarion’s management promptly

issued a written reprimand to Clubb, warning her to be cautious

about her language.

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 While Liberto had every right to be offended by Clubb’s use

of a racial epithet and acted reasonably and responsibly in

reporting the incident to Clarion’s Human Resources Director,

she lacked a reasonable belief, as required by the language of

Title VII, that she was opposing her employer’s commission of

“a[] practice made . . . unlawful . . . by [Title VII].”

42 U.S.C. § 2000e-3(a). For that reason, I would conclude, as a

matter of law, that she did not engage in protected activity and

that the district court therefore properly entered summary

judgment against her on her retaliation claims.

B

In addition to adopting a broad and unprecedented standard

for evaluating retaliation claims under Title VII, the majority

also gratuitously reverses a portion of Jordan in a manner by

which Judge King, the majority’s author, explicitly vindicates

his dissent in Jordan, notwithstanding his concession that this

case presents distinguishing circumstances.

Notably, the majority does not overturn all of Jordan. It

in no way suggests, for example, that the isolated incident at

issue in that case was sufficiently severe to create a hostile

work environment. Indeed, by “oberserv[ing] that the district

court improperly analogized this matter . . . to Jordan,” the

majority instead confirms that “a racist remark that was made by

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a mere co-worker and not aimed at [the plaintiff] or any other

employee” does not amount to a hostile work environment. Ante,

at 35. Nor does the majority indicate that the plaintiff in

Jordan had a reasonable belief that a hostile work environment

was taking shape at the time he reported his co-worker’s racist

comment to his supervisors. Rather, the only portion of Jordan

that the majority overrules is its already liberalizing rule

that a plaintiff whose retaliation claim is based on an

objectively reasonable belief that a hostile work environment

was in progress, but not yet in existence, need only point to

some evidence indicating that such an environment was “likely to

occur.” Jordan, 458 F.3d at 340; see ante, at 38.

The majority claims that this aspect of Jordan “is

incompatible with Crawford [v. Metropolitan Government of

Nashville & Davidson County, 555 U.S. 271, 279 (2009)], as well

as other Supreme Court decisions directing that Title VII’s

antiretaliation provision be interpreted ‘to provide broad

protection from retaliation.’” Ante, at 41 (quoting Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). An

analysis of these cases, however, belies the notion that they

are in tension with Jordan or that, with these decisions, the

Supreme Court has given us license to provide employees with

“broad[er] protection from retaliation” than the text of the

statute justifies.

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 For example, Crawford resolved the narrow question of

whether “an employee who speaks out about discrimination not on

her own initiative, but in answering questions during an

employer’s internal investigation” has opposed an unlawful

employment practice within the meaning of Title VII’s anti-

retaliation provision. 555 U.S. at 273. In holding that such

an employee had engaged in protected activity, the Supreme

Court’s analysis focused on the “ordinary meaning” of the term

“oppose,” leading the Court to conclude -- as a matter of

statutory interpretation -- that “[t]here is . . . no reason to

doubt that a person can ‘oppose’ by responding to someone else’s

question just as surely as by provoking the discussion, and

nothing in the statute requires a freakish rule protecting an

employee who reports discrimination on her own initiative but

not one who reports the same discrimination in the same words

when her boss asks a question.” Id. at 276-78. Cleary, nothing

in this holding is “incompatible” with Jordan. Ante, at 41.

Similarly, the issue in Burlington Northern was whether

“Title VII’s antiretaliation provision forbids only those

employer actions and resulting harms that are related to

employment or the workplace,” as does the statute’s substantive

antidiscrimination provision. 548 U.S. at 61. In answering

that question in the negative, the Court emphasized that

language in the antidiscrimination provision “explicitly

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limit[s] the scope of that provision to actions that affect

employment or alter the conditions of the workplace,” whereas

“[n]o such limiting words appear in the antiretaliation

provision.” Id. at 62. The Court further reasoned that the

difference between the two provisions’ purposes confirms “that

Congress intended the differences that its language suggests.”

Id. at 63. It was on this basis that the Court rejected the

view that it would be “‘anomalous’ to read the statute to

provide broader protection for victims of retaliation than for

those whom Title VII primarily seeks to protect, namely, victims

of race-based, ethnic-based, religion-based, or gender-based

discrimination.” Id. at 66. As such, despite the majority’s

suggestion to the contrary, Burlington Northern does not stand

for the proposition that courts must always adopt the broadest

possible construction of Title VII’s antiretaliation provision,

and it certainly does not authorize courts to afford plaintiffs

protection beyond what the statute itself provides.

At a more general level, the majority faults the Jordan

standard as being at odds with “the hope and expectation that

employees will report harassment early, before it rises to the

level of a hostile work environment.” Ante, at 38. Along these

lines, the majority suggests that, when combined with the early

reporting “compelled by the Ellerth/Faragher defense,” Jordan

places an employee who has experienced an isolated incident of

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harassment in an untenable position, leaving her vulnerable to

retaliation if she reports her supervisor’s conduct and

insulating her employer from liability should she fail to report

it. Ante, at 39. The majority’s dilemma, however, is a false

one. First, the Ellerth/Faragher affirmative defense only

enables an employer to avoid vicarious liability for its

supervisor’s creation of a hostile work environment if the

employer can prove both that it “exercised reasonable care to

prevent and correct promptly any . . . harassing behavior, and

. . . that the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided

by the employer or to avoid harm otherwise.” Ellerth, 524 U.S.

at 765 (emphasis added); see also Faragher, 524 U.S. at 807. It

is highly doubtful, however, that an employer would be able to

show that an employee acted unreasonably by choosing not to

immediately report an isolated incident of workplace misconduct

that was not in itself sufficient to give rise to a reasonable

belief that a hostile work environment was in progress. Cf.

Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 270 (4th

Cir. 2001) (holding that the employer had established the

affirmative defense because, “[i]n light of th[e] long-term and

persistent harassment, [the plaintiff] cannot be excused from

failing to report [her supervisor’s conduct]” sooner (emphasis

added)). Second, the majority combines the qualitative

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requirement of objective reasonableness in reporting harassment

with the laches concept described by the Supreme Court in

Faragher, 524 U.S. at 807, and developed by this court in

Matvia, 259 F.3d at 270, in order to invent a fictitious Catch-

22. In actuality, an employee only risks retaliation by

reporting too early when there is insufficient conduct about

which to complain under Title VII, and she only risks dismissal

of her claim for reporting too late when she inordinately delays

coming forward.

More to the point, however, it is not the role of this

court to incentivize the early reporting of objectionable

conduct where Congress itself has not seen fit to do so.

Indeed, Congress could have written Title VII’s antiretaliation

provision to provide protection to every employee who reports

any offensive, racially or sexually charged workplace incident

that makes him or her uncomfortable. But it did not. See,

e.g., Breeden, 532 U.S. at 269-71 (holding that an employee did

not engage in protected activity when she complained that,

during a meeting, her supervisor read aloud a sexually explicit

statement, which a job applicant had purportedly made, before

looking at her and stating, “I don’t know what that means,” and

then chuckling along with a male employee who offered to explain

the comment to him later). Instead, Congress chose to protect

only employees who have “opposed any practice made an unlawful

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employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a).

We have already liberally interpreted this provision to protect

employees who possess an objectively reasonable belief that they

are complaining about a Title VII violation that has occurred or

is in progress, a standard that serves to protect employees in

close cases. But we cannot simply presume that a single

incident of racially charged workplace misconduct will

inevitably ripen into an actual racially hostile work

environment, lest our interpretation become completely

untethered from Title VII’s text. Instead, a plaintiff whose

retaliation claim is based on an objectively reasonable belief

that she was opposing a hostile work environment that was in the

process of developing must be able to point to some evidence

that supports the inference that such an environment was “likely

to occur.” Jordan, 458 F.3d at 340 (emphasis added).

Instead of requiring the plaintiff to produce such

evidence, the majority concludes that opposing an incident that

is humiliating, regardless of whether it could lead to a hostile

work environment, is protected. Ante, at 44-45. Even a cursory

consideration of this new per se rule quickly reveals its

problems. An isolated incident of humiliating harassment is, of

course, more serious than “a mere offensive utterance.” Harris,

510 U.S. at 23. But it is far from clear why a single incident

of humiliating harassment that is insufficient to support a

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reasonable belief that a hostile work environment had come into

existence would nonetheless give rise to a reasonable belief

that a hostile work environment was in the process of

developing. The majority must be assuming that, if a single

instance of humiliating harassment has occurred, then

objectionable conduct is bound to be repeated at a level

sufficient to create a hostile work environment. But this, of

course, does not follow. And I can anticipate much hand-

wringing in the legal community when determining whether a

particular incident qualifies as humiliating or whether it

remains merely an offensive utterance.

The majority’s position is also entirely pessimistic about

the ability and desire of employers to stop the progression from

isolated utterances of racial slurs to a hostile work

environment. Indeed, the majority manifests a fundamental

distrust of employers, assuming that, once a humiliating epithet

is uttered, the development of a hostile work environment is a

fait accompli -- in other words, that employers are powerless or

unwilling to prevent a descent into pervasive hostility. This

assumption, of course, finds no more support in Title VII or

Supreme Court precedent than it does in basic logic. What is

more, even the most conscientious employer will now be reluctant

to fire an objectively underperforming employee who has reported

a racial epithet that could be considered humiliating because,

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under the majority’s standard, that employee is effectively

presumed to have reasonably believed that he was protesting an

unlawful employment practice when he made his complaint. This

presumption is at odds with Title VII, the Supreme Court’s

jurisprudence, and the fundamental character of employers in

America’s modern workplace.

IV

At bottom, I would conclude, as did the district court,

that while Clubb’s comments to Liberto were unacceptably

offensive, they were made in connection with an isolated

incident, and therefore they were insufficient to demonstrate

the existence of a hostile work environment that altered the

terms and conditions of Liberto’s employment. I would also

conclude, as did the district court, that because Title VII’s

antiretaliation provision requires, as we have liberally

construed it, that an employee’s opposition must be to a hostile

work environment that she reasonably believed was in progress,

Liberto’s retaliation claims also fail. Thus, I would affirm.

106