Fourth Circuit Reaffirms Scope of Retaliation Protections in Title VII Opinion

By Andrew Henson

In the recent opinion Strothers v. City of Laurel, Maryland, 895 F.3d 317, (4th Cir. 2018), the Fourth Circuit gave further articulation to the type of facts which can permit a retaliation claim under Title VII to survive summary judgment, particularly what can pass under the “severe or pervasive” prong of a complaint of hostile work environment which caused the subsequent retaliation. In that case, Strothers, a black woman, was hired as an administrative assistant to work for the City of Laurel, Maryland. Soon after her hiring, Strothers found herself subjected to meticulous scrutiny by Koubek, her white supervisor, who chided her about aspects of the dress code (including an allegation that she grabbed at Strothers’ pants), required reporting of bathroom breaks, and changed the time that Strothers needed to report to work from 9:05 a.m. to 8:55 a.m. and reported on Strothers for minor instances of tardiness. After Strothers made a complaint about the foregoing “harassment” she received from Koubek, she was terminated the following day.

At summary judgment, the Maryland district court granted the city’s motion on the grounds that the Strothers could not make out a prima facie case of retaliation. However, after reviewing the decision, the Fourth Circuit scolded the district court for, “failing to draw all reasonable inferences in favor of Strothers, the non-moving party,” and instead, “adopt[ing] the most charitable interpretation possible in favor of the City, the moving party.” Id. at 330.

In reversing the district court, the Fourth Circuit’s July 6, 2018 opinion scrutinized numerous aspects of what constitutes a protected complaint made in opposition to reasonable belief of a hostile work environment based upon race. Of particular interest is the court’s opinion on what is sufficiently “severe or pervasive” harassment to give legal protection to a complaint made against the same. On that subject, the Fourth Circuit held:

The record clearly shows that Koubek significantly altered terms and conditions of Strothers’ employment. First, Koubek changed Strothers’ daily arrival time. Although Strothers accepted Piringer’s job offer with the understanding that her arrival time would be 9:05 a.m., Koubek effectively overruled that arrangement and began requiring Strothers to arrive by 8:55 a.m.—five minutes before the office opened. While a difference of ten minutes may not always constitute a significant change in employment conditions, that difference here was expressly bargained for by the employee and had a significant effect on the employee’s decision to accept the job because it affected her capacity to be a responsible mother. Second, viewing the disputed facts in the light most favorable to Strothers, Koubek also changed the dress code as applied to Strothers. Although the dress code allowed jeans on Fridays, Koubek took issue with Strothers’ “Nine West jeans,” publicly humiliated her, and forced her to take time off to change—not to mention Koubek’s possible act of battery. Third, Koubek instituted a policy that forbid Strothers from leaving her desk, including to use the restroom, without specific approval—a policy of which Strothers was unaware before accepting the job. And not only did Strothers have to receive Koubek’s permission for every use of the bathroom, she had to report the length of each trip. Thus, a reasonable jury could find that the alleged harassment was a daily occurrence that pervaded numerous aspects of Strothers’ employment.


Id. at 331-32. In ruling that the foregoing was sufficiently severe or pervasive to survive summary judgment, the appellate court emphasized that its decision was “not test[ing] the definition’s outer limits.” Id. at 331. Thus, the opinion further illuminates the sufficiency of a fact pattern that is relatively high on the pervasiveness aspect of the hostile work environment spectrum and of a lesser caliber of severity.