NOVA Legal Beat: Does One ‘Appalling’ Incident Create a Hostile Work Environment?

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. If a supervisor does something appalling to a subordinate, but only just once, can he still create a hostile work environment?

A. By and large, courts have found that hostile work environments are not spontaneous. In most cases, they are many days, weeks, months, or years in the making. That is because anti-discrimination laws, such as Title VII of the Civil Rights Act, prohibit employers from discriminating against employees with respect to their “compensation, terms, conditions, or privileges of employment.”

Rarely will a supervisor’s or co-worker’s single action or utterance be “sufficiently severe and pervasive” enough to have such an effect.

“Hostile work environments generally result only after an accumulation of discrete instances of harassment,” the 4th U.S. Circuit Court of Appeals said in Boyer-Liberto v. Fontainebleau Corp. (2014). “Their very nature involves repeated conduct.” Due to this nature, the court in this case found one of the employer’s employees did not create a hostile work environment when she allegedly called the appellant, a hotel hostess, a racial slur.

The employer terminated the appellant over poor performance issues a little more than a month after it hired her, prompting her to file a complaint with the Equal Employment Opportunity Commission (EEOC). The court said “a coworker’s use of that term 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 the appellant’s employment.

In contrast, Okoli v. City of Baltimore (2011) involved an African American executive assistant who had suffered from a dozen incidents over a four-month period during which her supervisor, among other things, said he wanted to have sex with her in a Jacuzzi, inquired about her underwear, talked about his sex life with other women, fondled her leg under a table, and forcibly kissed her. The 4th Circuit in Okoli (2011) said the appellant presented a “strong claim for hostile work environment” and added that “some of the incidents may have been severe enough to be actionable in and of themselves.”

The court in Okoli explained further, that “a single incident [of sexual harassment that] was extraordinarily severe can be actionable.” The important question is: What type of incident qualifies as “extraordinarily severe?” In Whitten v. Fred’s, Inc. (2010), the 4th Circuit provided some guidance when it noted, “[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of Title VII liability.” But even in cases involving sexual assault, the victim would need to prove the employer was liable for the attacker’s actions.

Employees should not tolerate a hostile work environment, and it is crucial for them to put employers on notice of any discriminatory conduct immediately. Consult with an experienced employment law attorney who could assess when the employer’s conduct was severe and pervasive enough to create a hostile work environment.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit

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