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Fired after complaining about racial harassment

June 25, 2014:  Four days after complaining that a manager had twice called her a “porch monkey,” Reya Boyer-Liberto was fired. She sued her employer, claiming retaliation. A panel of judges from the Fourth Circuit Court of Appeals ruled that her complaint was not protected by Title VII’s anti-retaliation provision because she couldn’t have reasonably believed that the racial harassment was severe or pervasive enough to make her workplace a hostile work environment in violation of Title VII. In response, Ms. Boyer-Liberto asked that all of the judges on the Fourth Circuit review the decision. 
The Public Justice Center and the Metropolitan Washington Employment Lawyers Association filed an amicus brief in support of her petition in Boyer-Liberto v. Fountainebleau Corp. In the brief, PJC Murnaghan Appellate Advocacy Fellow Ilana Gelfman and private co-counsel Steve Chertkof of Heller Huron Chertkof & Salzman PLLC argued that the panel’s decision conflicted with Supreme Court case law that requires employees to complain about harassment before it becomes severe or pervasive enough to constitute a hostile work environment. The brief also contended that the panel’s decision conflicted with Supreme Court case law stating that Title VII protects witnesses who participate in internal employer-led investigations, because a witness will seldom see enough of the harassment to have an objectively reasonable belief that the harassment was severe or pervasive. If witnesses’ speech is not protected, then they have little incentive to participate in internal investigations intended to resolve discrimination claims. We hope that this case will help strengthen anti-retaliation protections for workers.

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