Through the 2000s, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) had the reputation as one of the most employer-friendly U.S. appellate courts. As new judges took to the bench over the past eight years, this reputation has changed. The change can be illustrated by a new unpublished decision that reverses dismissal of sexual harassment claims that likely would not have survived under previous court rulings.

In Hernandez v. Fairfax County, the plaintiff was a female firefighter who alleged that she was subjected to a hostile and offensive work environment by her male station captain. The allegations include invasion of her personal body space and sexually suggestive remarks over an eight-month period. The station chief was reprimanded when the plaintiff complained about his behavior, and she alleges that he began collecting information about her work activities and movements at work. The plaintiff eventually transferred to another station and received a written warning after becoming involved in a dispute with another firefighter. She sued, claiming discrimination and retaliation under Title VII.

The district court dismissed the claims, concluding that the plaintiff did not present evidence indicating that she had been subjected to a hostile and offensive work environment, or that the reprimand was causally connected to her earlier complaint. The court characterized the alleged offensive conduct as insignificant and stated that the plaintiff was largely unaware of the tracking activities.

On appeal, the Fourth Circuit reversed dismissal of both claims and remanded the matter for jury trial. The court applied the hostile work environment standard to conclude that an objective person would view the alleged conduct as disruptive and humiliating. Even though the plaintiff only became aware of the tracking activities toward their end, again, this behavior was enough to satisfy her burden of proof. In terms of the retaliation claim, even though it involved a separate incident at a separate work location, considerably after the initial complaint, the Fourth Circuit concluded that the severity of the reprimand in relation to the alleged conduct created a jury question for retaliation.

This case demonstrates that even conduct that does not involve more than comments and non-sexual touching or physical closeness can reach the level of a Title VII violation, and that seemingly unrelated disciplinary action will be scrutinized to determine it if potentially could have resulted from an earlier complaint. Based on this standard, district court judges in the Fourth Circuit may become increasingly unwilling to dismiss sexual harassment and retaliation claims on summary judgment based on the higher bar set by the appellate court. In addition to new judges on the bench in the Fourth Circuit, this decision may reflect increasing unwillingness to tolerate workplace behavior that years ago would likely have resulted in a different determination.