Harassment in the Workplace

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ALI-ABA Course of Study

LITIGATING EMPLOYMENT DISCRIMINATION AND
EMPLOYMENT-RELATED CLAIMS AND DEFENSES IN
FEDERAL AND STATE COURTS

Harassment in the Workplace

by
Debra S. Katz ¹
Katz, Marshall & Banks, LLP
Washington, D.C.

TABLE OF CONTENTS

1. INTRODUCTION.

This chapter provides an overview of harassment employment law claims under Title VII and Section 1981, with an emphasis on sexual and racial harassment claims, and a briefer presentation of concurrent state civil rights remedies.

There are no comprehensive statistics for the total number of all workplace harassment complaints, formal and informal, since there is no central repository for the reporting of complaints that are resolved before going through the agency or judicial stage. The Equal Employment Opportunity Commission's most recent enforcement statistics show there were12,025 sexual harassment charges filed during fiscal year 2006, which represented almost 52% of all gender-based charges; the remainder were gender discrimination charges. See EEOC, "Enforcement Statistics" (Feb 1, 2007). These statistics do not include charges filed with state or local agencies but not cross-filed with the EEOC. The EEOC no longer provides comparable statistical information for racial or national origin harassment claims.

2. APPLICABLE FEDERAL STATUTES.

Most racial and sexual harassment claims are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; racial harassment claims can also be brought under the Reconstruction-Era civil rights statute, 42 U.S.C. § 1981. Racial harassment claims against state or local governments can be brought under 42 U.S.C. § 1983, if the employee alleges that her constitutional rights were violated by defendants' discriminatory conduct. In similar circumstances, a claim may also be brought under the conspiracy statutes, 42 U.S.C. §§ 1985(3) and 1986. The state statutes covering racial and sexual harassment are tabulated in § 8 infra, but these statutes are only analyzed with regard to litigation in federal courts pursuant to their supplemental jurisdiction and the issues of state sovereign immunity.

A. Section 1981.

Section 1981, part of the Civil Rights Act of 1866, was enacted pursuant to the Thirteenth Amendment and bars racial discrimination. 42 U.S.C. § 1981. In 1989, the Supreme Court interpreted Section 1981 as excluding claims arising during the employment context from its protection. Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989). In response, the Civil Rights Act of 1991 expressly amended Section 1981 to add subsections (b) and (c), which provide for a broader reading of the right to "make and enforce contracts" and reaffirm the applicability of Section 1981 to private employers. Thus, courts now recognize that racial discrimination and harassment claims by employees lie within the statutory protection of Section 1981. See Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1033-34 (7th Cir. 1998).

Section 1981 provides, in relevant part, that:

(a) All persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . .
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981 (emphasis added).

The statute of limitations for Section 1981 actions depends upon whether the plaintiff is bringing claims based on post-hiring conduct, which first became actionable under Section 1981 when that statute was amended in 1991, or if the plaintiff is bringing a claim based on the hiring process. The Supreme Court recently resolved a split among the circuits, and held that the catchall federal four-year statute of limitations, 28 U.S.C. § 1658, applies to claims brought under the post-1990 version of Section 1981, e.g., "hostile work environment, wrongful termination, and failure to transfer claims." Jones v. R.R. Donnelley & Sons Co., 124 S. Ct. 1836, 1842 (2004); see also "Donnelley Settles Race Bias Lawsuit," Washington Post, Oct. 23, 2004, at E-2 (describing $15 million settlement). However, for failure-to-hire claims, the state personal injury or tort statute of limitations remains operative. The significant result of the Jones decision, for harassment plaintiffs, is a expansion of the time period for bringing a claim in those states for which the state statute of limitations is shorter. It should be noted that Section 1981a, which sets forth certain remedies, applies to Title VII actions, and not to Section 1981 actions.

B. Sections 1985(3) and 1986.

Sections 1985(3) and 1986, the conspiracy statutes, govern harassment that results from the actions of two or more persons. Section 1986 reaches those who had notice of the conspiracy and were able to prevent it, but did not do so. Section 1985(3) provides, in relevant part, that:

If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property . . . the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3) (emphasis added). The companion statute, Section 1986, provides, in relevant part, that:

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented.

42 U.S.C. § 1986 (emphasis added). A claim under Section 1986 must be brought "within one year after the cause of action has accrued." Id.

C. Title VII.

Title VII was enacted through the Civil Rights Act of 1964, pursuant to the Fourteenth Amendment, and applies to employers with "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or proceeding calendar year." 42 U.S.C. § 2000e(b). Thus, employees of certain small or seasonal businesses are not protected by Title VII, although they may be able to obtain recourse for employment discrimination through Section 1981 (for racial or national origin harassment claims), or those state or local anti-discrimination statutes that have lower thresholds.

1. Title VII's Scope and Procedural Issues.

Section 703 of Title VII, as amended, provides in relevant part, that:

(a) It shall be an unlawful employment practice for an employer - (1) . . . 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) (emphasis added).

The statute of limitations for private-sector Title VII actions is governed by 42 U.S.C. § 2000e-5(e)(1), which requires that a charge "shall be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful employment practice occurred" unless the charge is also filed with a state or local agency, which extends the filing period to 300 days. See Delaware State College v. Ricks, 449 U.S. 250, 256-59 (1980); see also 29 C.F.R. § 1601, subpart B (procedural requirements). In contrast, federal-sector employees must inform their agency's designated EEO office within 45 days of the alleged discrimination or harassment; the agency then allows the employee to participate in either counseling or alternative dispute resolution. If these mechanisms are unsuccessful, the federal employee can then file an EEO complaint with the agency, but has only 15 days to do so. See 29 C.F.R. § 1614.

Title VII's "mixed motive" element allows the plaintiff to recover if she "demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). This "mixed motive" element is limited to discrimination or harassment claims, is not available for retaliation claims, Tanca v. Nordberg, 98 F.3d 680, 682-85 (1st Cir. 1996), and does not apply to Section 1981 claims. Mabra v. United Food & Commercial Workers Local Union No. 1996, 176 F.3d 1357, 1358 (11th Cir. 1999). The Supreme Court held that, in a mixed motives case, a plaintiff can rely on circumstantial evidence of discriminatory conduct, and does not have to present direct evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

2. Title VII's Coverage and Employer Size.

In 2003, the Supreme Court ruled upon an appeal from the Ninth Circuit which raised the question of whether shareholder-employees (here, physicians) in a professional corporation were "employees" for the purpose of determining whether the employer had sufficient employees to meet the minimum employer size for ADA claims. Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003). The Court held that the EEOC's six-factor analysis would be particularly useful in making this determination:

We are persuaded by the EEOC's focus on the common-law touchstone of control, see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), and specifically by its submission that each of the following six factors is relevant to the inquiry whether a shareholder-director is an employee:

[1] Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work;
[2] Whether and, if so, to what extent the organization supervises the individual's work;
[3] Whether the individual reports to someone higher in the organization;
[4] Whether and, if so, to what extent the individual is able to influence the organization;
[5] Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; [and]
[6] Whether the individual shares in the profits, losses, and liabilities of the organization.

Wells, 538 U.S. at 449-50 (quoting EEOC Compliance Manual, § 605:0009). The Supreme Court discussed the implications of these factors:

As the EEOC's standard reflects, an employer is the person, or group of persons, who owns and manages the enterprise. The employer can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed. The mere fact that a person has a particular title - such as partner, director, or vice president - should not necessarily be used to determine whether he or she is an employee or a proprietor. . . . Nor should the mere existence of a document styled "employment agreement" lead inexorably to the conclusion that either party is an employee. . . . Rather . . . the answer to whether a shareholder-director is an employee depends on "'all of the incidents of the relationship . . . with no one factor being decisive.'"

Id. at 450-51 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (1992)). However, while the six fact test set out in Wells is used to distinguish individuals whose "title or ownership in the business comes without meaningful authority to run the business from those whose office or state in the company is genuine" some courts have cautioned against its use in circumstances where an employee is simply exercising delegated managerial authority. See, e.g., Smith v. Castaway's Family Diner, 453 F.3d 971 (7th Cir. Ind. 2006) (reversing a District Court finding that two restaurant managers did not constitute employees for he purposes of meeting the 15 employee threshold under Title VII, and holding that the Wells six factor test was inappropriately applied in this context).

3. Title VII's Coverage of Law Firm Partners.

The Supreme Court's Wells decision, by focusing on the EEOC's six factor test, and by recognizing that no one factor is outcome determinative, may provide better guidance to the lower courts in resolving the difficult and fact-specific question of whether partners in a professional corporation, such as accounting and law firms, are employees and hence protected under the employment discrimination statutes. See, e.g., EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 703-07 (7th Cir. 2002) (collecting cases).

Traditionally, persons who were partners had both an equity interest and the full ability to participate in the management and control of the partnership. In more recent years, large partnerships have found it unwieldy to allow all partners vote on managerial and personnel decisions, so that these firms have typically created a separate management committee comprised of a small number of partners who make these decisions on behalf of the partnership. Further, an increasing number of partners are now "salary" or "income" partners, which means that they get a fixed salary instead of a share of the profits, and they do not have any equity in the partnership. These two trends - rule by management committee and non-equity salaried partners - mean that many professionals who are denominated as "partners" are, in fact, employees for the purposes of the employment discrimination statutes. See also Hishon v. King & Spalding, 467 U.S. 69, 79 n.2 (1984) (Powell, J., concurring) ("Of course, an employer may not evade the strictures of Title VII simply by labeling its employees as 'partners.'").

The courts have consistently drawn a line between "general" partners - those who have equity in the partnership, have a significant degree of management or control over the partnership, are subject to liability, and are compensated as a function of the partnership's profit - and "nominal" partners - those who do not have equity, do not have any significant management or control over the partnership, are not subject to liability, and are compensated primarily or exclusively on a wage basis. Only the former are excluded from the definition of employee under the employment discrimination statutes. See, e.g., Wheeler v. Main Hurdman, 825 F.2d 257, 260 (10th Cir. 1987) (plaintiff was a general equity partner in an accounting firm, was entitled to compensation as a share of firm profits, contributed to capital, had unlimited personal liability, and had the right to vote on nearly all matters affecting the partnership).

In contrast, where an employee, although denominated a partner, received a regular salary, lacked equity, lacked any meaningful opportunity to exercise management or control over the partnership, and was not liable for the partnership's debts, then the circuit courts have held that such persons are employees. See, e.g., Simpson v. Ernst & Young, 100 F.3d 436, 443-44 (6th Cir. 1996); Strother v. Southern Cal. Permanente Med. Group, 79 F.3d 859, 867 (9th Cir. 1996) ("determining whether an individual is an 'employee' typically requires a factual inquiry which goes beyond merely the partnership agreement and the 'partner' label."). ²

See Simons v. Harrison Waldrop & Uherek, 2006 WL 1698273 (S.D. Tex. 2006), which involved a relatively small law firm. As in Clackamas, the question was whether the defendant firm had the requisite number of employees to be covered, in that case by the ADEA. Taking up the status of five partners, the court held that two could potentially qualify as employees and three could not. The court observed that in large partnerships "partners without true controlling interests . . . are . . . only nominally partners and have none of the characteristics of a partner under the common law." 2006 WL 1698273 at *7. Ultimately the court held that the firm in question was a "traditional partnership" with just six equity partners and twenty-one employees as distinguished from "more modern business associations in which many individuals are only nominally partners." Id. at 8.

See also Maxwell v. Jenkens & Gilchrist, P.C., No. 05-CV-0402 (N.D. Tex. Apr. 27, 2006). Denying the firm's motion for summary judgment, the court held that the plaintiff's employee status was a question of fact to be determined at trial. The plaintiff was an "equity shareholder" who had spent three years leading the firm's intellectual property practice group of some seventy attorneys. Nevertheless, the court observed that plaintiff had no discretion to "discipline or increase compensation of those under his authority" and had no control over his own compensation and termination. Notwithstanding that the plaintiff was a "practice group leader", he was still "one of perhaps hundreds of shareholders."

See Jacob A. Stein and Michael D. Billok, "The Real Partner, the Equity Partner, the Nonequity Partner, the Contract Partner, and the 'Hi Partner'", The Washington Lawyer (January 2007) at 37 ("Ousted partners may have grounds to sue firms for discrimination - as employees.") (Emphasis added). The article concludes:

As the firm grows, it is inevitable that the individual will have less and less control over his fate. An ousted partner may be able to use that very fact to contend that he was actually an employee, and not a true partner, and therefore has standing to assert discrimination claims.

Id. at 39. (Emphasis added.) An article in last month's ABA Journal, "Suing Sidley Austin: An Equal Employment Opportunity Commission action emboldens law firm partners to explore severance options", makes the same point based on the EEOC's pending lawsuit claiming that the Sidley firm unlawfully discriminated based on age against more than thirty of its partners.

3. WORKPLACE HARASSMENT.

A. Definition.

During the 1990s, the courts and legal commentators differentiated between "quid pro quo" sexual harassment and "hostile work environment" sexual harassment. This distinction was "between cases in which threats are carried out and those where they are not or are absent altogether." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751 (1998). The case law had developed to recognize that "both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive." Id. (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). However, the Court recognized that this dichotomy was of "limited utility" other than in differentiating between the presence and absence of implemented threats. Id. at 752. Therefore, the Court decided that, to determine whether the employer should be held vicariously liable, as opposed to "liability limited to its own negligence," for the actions of its supervisors, the key issue is whether there was a tangible employment action. Id. at 753.

The result is that practitioners should focus on the presence or absence of a tangible employment action, and not the categories of "quid pro quo" and "hostile work environment" which distinction Supreme Court effectively abandoned. See also Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 120 (3d Cir. 1999) (these cases "largely eliminated the distinction between hostile work environment claims and quid pro quo claims, focusing instead on the presence or absence of tangible adverse employment actions."); Vonderohe v. B&S of Fort Wayne, Inc., 36 F. Supp. 2d 1079, 1083 (N.D. Ind. 1999) ("the distinction between the two kinds of harassment is analytical, not statutory").

Although long antedating the Supreme Court's 1998 decisions, the EEOC promulgated, in 1980, a definition of sexual harassment, which is concordant with the case law:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

29 C.F.R. § 1604.11(a). The first and second prongs correspond to "quid pro quo" harassment, while the third prong corresponds to hostile environment harassment.

B. Elements of the Claim.

The Supreme Court first recognized the validity of "hostile or abusive work environment" claims under Title VII in a sexual harassment case. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). The Supreme Court noted that the first case "to recognize a cause of action based upon a discriminatory work environment" was a Fifth Circuit case involving a Hispanic plaintiff who had claimed that "her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele." Id. at 65-66 (citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)). In Rogers, the Fifth Circuit held that "the practice of creating a working environment heavily charged with ethnic or racial discrimination" was sufficient to fall within the proscription of Title VII's expansive "terms, conditions or privileges of employment." Rogers, 454 F.2d at 238.

The Meritor Court held "that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Meritor, 477 U.S. at 66. However, the Court recognized that "not all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII." Id. at 67 (citing Rogers, 454 F.2d at 238). Therefore, the Court required that: "[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of the victim's employment and create an abusive working environment.'" Id. (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). The Meritor Court adopted the requirement of Rogers and Henson which had required that harassment must affect the "terms, conditions or privileges" of plaintiff's employment in order to violate Title VII.

Seven years later, the Supreme Court addressed the issue of whether the conduct "must seriously affect an employee's psychological well-being or lead the plaintiff to suffer injury" in order for the plaintiff to prove hostile environment harassment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 20 (1993) (internal quotation marks and brackets deleted). The Supreme Court rejected the approach taken by three circuits which had required such a serious effect, since "concrete psychological harm [is] an element Title VII does not require." Id. at 22 (emphasis added). Instead, the Harris Court adopted a requirement that the plaintiff must show defendants' conduct to be both objectively and subjectively hostile or abusive:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.

Id. at 21-22 (emphasis added). The Harris Court recognized that this determination "is not, and by its nature cannot be, a mathematically precise test." Id. at 22. Nonetheless, the Court set forth various analytical factors:

whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These 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.

Id. at 23. The Court further recognized that "no single factor is required." Id.

The lower federal courts have generally used the Supreme Court's approach in Harris as a starting point for analyzing harassment claims. The Second, Seventh, Eighth and Tenth Circuits have used the Harris framework, usually bifurcated into objective and subjective components, followed by proof of the employer's liability (respondeat superior). See cases cited infra.

The Third, Fourth, Sixth, Ninth and Eleventh Circuits have adopted a five-element test to analyze harassment claims. This test originated in the framework used by the Eleventh Circuit for a sexual harassment case. Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982). The Henson elements are: (1) the employee belongs to a protected group; (2) the employee was subject to unwelcome sexual or racial harassment; (3) the harassment complained of was based on employee's sex or race; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) existence of employer's liability (respondeat superior). This approach has also been used by the Fifth Circuit for sexual harassment claims, and has been applied by district courts within the District of Columbia, First and Fifth Circuits to racial harassment claims. Although not all of the harassment cases discussed herein have cited Henson, they typically cite to cases from their own circuit, involving hostile environment sexual harassment, which have cited to Henson. See cases cited infra.

District of Columbia Circuit. This circuit has recognized the analogy between racial harassment and sexual harassment. See, e.g., Bundy v. Jackson, 641 F.2d 934, 945 (D.C. Cir. 1981) ("Racial slurs . . . may [also] create Title VII liability"). Several district court cases in this Circuit have applied the Henson framework to racial harassment cases. See, e.g., Villines v. United Bhd. of Carpenters and Joiners of Am., AFL-CIO, 999 F. Supp. 97, 104 (D.D.C. 1998); Jones v. Billington, 12 F. Supp. 2d 1, 11 (D.D.C. 1997). This corresponds to the approach taken by the Third, Fourth, Fifth, Sixth, Ninth and Eleventh Circuits, infra.

First Circuit. Several district court cases in this Circuit have applied the five factor Henson approach to racial harassment, albeit without citing to Henson itself. See, e.g., Riesgo v. Heidelberg Harris, Inc., 73 FEP Cases 1783, 1787 (D.N.H. 1997); Johnson v. Teamsters Local Union No. 559, 67 FEP Cases 1150, 1153 (D. Mass. 1995).

Second Circuit. This circuit has adopted a two-prong analysis for harassment claims, which effectively collapsed the first four Henson elements into one. First, plaintiff "must demonstrate that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his work environment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)) (internal quotation marks omitted). Second, plaintiff must demonstrate respondeat superior, i.e.,"that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Id.

Third Circuit. This circuit has adopted a five prong analysis which differentiates the objective and subjective elements. The harassment plaintiff must show: "(1) that he or she suffered intentional discrimination because of [sex]; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same [sex] in that position; and (5) the existence of respondeat superior liability." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996). The second element does not require the "severity" standard of other circuits. The third element corresponds to the subjective standard; the fourth element corresponds to the objective standard. See West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995).

Fourth Circuit. This circuit has adopted a four prong analysis which effectively assumes that the plaintiff belonged to a protected group. The plaintiff, to prove a hostile work environment, "must show that (1) the harassment was unwelcome; (2) the harassment was based on his [sex]; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer." Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).

Fifth Circuit. This circuit has used the Henson framework for sexual harassment claims, which suggests that this test would also be applied by that circuit to racial harassment claims. See, e.g., Shepherd v. Comptroller of Pub. Accounts of State of Tex., 168 F.3d 871, 873 (5th Cir. 1999) (collecting cases); Waymire v. Harris County, Texas, 86 F.3d 424, 428 (5th Cir. 1996) (same). Several district courts have used the five factor Henson approach for racial harassment cases. See, e.g., Skinner v. Brown, 951 F. Supp. 1307, 1321-22 (S.D. Tex. 1996) (citing Waymire).

In Harvill v. Westward Communications, LLC, 433 F.3d 428 (5th Cir. 2005), the court reversed a lower court ruling that in order to be actionable, harassment had to be both severe and pervasive. The Fifth Circuit, relying on the Supreme Court's Decision in Meritor, held that plaintiffs must establish that the conduct in question is sufficiently severe or pervasive.

Sixth Circuit. This circuit has used the Henson test, stating that the hostile work environment harassment plaintiff must prove "(1) He was a member of a protected class; (2) He was subjected to unwelcomed racial and/or religious harassment; (3) The harassment was based on [sex], race or religion; (4) The harassment had the effect of unreasonably interfering with [plaintiff's] work performance by creating an intimidating, hostile, or offensive work environment; and (5) The existence of employer liability." Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999); accord Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078-79 (6th Cir. 1999).

Seventh Circuit. This circuit has expressly rejected the multi-factor approach taken by several other circuits, on the grounds that such a test "has the potential for a mechanical application that overlooks or underemphasizes the most important features of the harassment inquiry," i.e., the objective and subjective standards. Daniels v. Essex Group, Inc., 937 F.2d 1264, 1271 (7th Cir. 1991); see also Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (applying Daniels test). Instead, the Seventh Circuit has required that the plaintiff must (1) prove the subjective element by showing that the defendant's conduct had an "actual effect upon the particular plaintiff bringing the claim" and (2) prove the objective element by showing the "likely effect of a defendant's conduct upon a reasonable person's ability to perform his or her work and upon his or her well-being." Rodgers, 12 F.3d at 674; Daniels, 937 F.2d at 1271-72. Once the plaintiff has made this showing, then the court must also determine the existence of respondeat superior: "whether the employer knew or should have known about an employee's acts of harassment and fails to take appropriate remedial action." Daniels, 937 F.2d at 1272 (quoting Brooms v. Regal Tube Co., 881 F.2d 412, 420 (7th Cir. 1989)).

Eighth Circuit. This circuit has also used the two-step objective and subjective analysis of harassment claims. Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 357 (8th Cir. 1997). Although the Delph court did not formally articulate its analytical framework, the harassment claim was analyzed based on plaintiff's "sufficient showing that he was subjected to a racially hostile workplace environment a reasonable person would find intolerable, and that he did find it intolerable." Id.

Ninth Circuit. This circuit has used a three-element analysis under which the plaintiff "must show (1) that he was subjected to verbal or physical conduct of a racial [] nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment." Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998) (per curiam) (citing Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)).

Tenth Circuit. This circuit has used the same three-factor approach as for the Seventh Circuit, first requiring the plaintiff to prove that defendant's conduct met both the objective and subjective elements, and then prove that the defendant employer was liable under respondeat superior. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1269-71 (10th Cir. 1998).

Eleventh Circuit. The district courts in this circuit have applied its Henson precedent to racial harassment claims. See, e.g., Perkins v. U.S. Airways, Inc., 8 F. Supp. 2d 1343, 1350-51 (M.D. Fla. 1998); Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (citing Henson), aff'd 58 F.3d 640 (11th Cir. 1995) (table).

The differences between these approaches are frequently more academic than outcome determinative, since the variations reflect a reworking or combining of several of the Henson elements. The following analysis is based on the five-factor Henson element test.

C. Membership in Protected Class.

This element can be met by "a simple stipulation that the employee" belongs to a protected class. Henson, 682 F.2d at 903. However, a generalized claim by an employee that others were harassed is not actionable, since private parties lack standing to enforce the rights of harassed coworkers or customers. See Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180 (7th Cir. 1998) ("Her claim is not that white women were harassed on account of their race or sex, but that persons of any race or sex who were opposed to discrimination felt uncomfortable."); see also Childress v. City of Richmond, Va., 134 F.3d 1205, 1207 (4th Cir. 1998) (en banc) (per curiam) (white police officers lacked standing to bring Title VII hostile environment claim "for discrimination directed at others"). There is an exception: persons who are discriminated or harassed for having opposed racial or sexual harassment against others are protected by the opposition clause of the anti-retaliation statute, 42 U.S.C. § 2000e-3(a).

For sexual harassment claims, the courts have long recognized that males can be victims of workplace harassment. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983). The EEOC enforcement statistics indicate that males represent a small but growing number of all sexual harassment charges: in fiscal year 1992, 9.1% of all Title VII sexual harassment charges filed were by males; this increased to 14.7% in fiscal year 2003. See EEOC, "Sexual Harassment Charges" (Mar. 8, 2004). The EEOC statistics do not, however, indicate the percentage of these charges filed by males that are same-sex harassment (as opposed to harassment by female supervisors); nor do these statistics indicate the percentage of charges filed by females that represent same-sex harassment.

D. Unwelcome Nature of Conduct.

This element must be judged under the objective and subjective criteria of Harris, which are based on a standard of reasonableness. Although the conduct must be severe or pervasive, it is not necessary for there to be "concrete psychological harm" provided that "the environment would reasonably be perceived, and is perceived, as hostile or abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) (emphasis added). As the Harris Court noted, "Title VII comes into play before the harassing conduct leads to a nervous breakdown," id., and the same presumably also applies to racial harassment under Section 1981.

The Second Circuit aptly remarked that: "Harassed employees do not have to be Jackie Robinson, nobly turning the other cheek and remaining unaffected in the face of constant degradation. They are held only to a standard of reasonableness." Torres v. Pisano, 116 F.3d 625, 632-33 (2d Cir. 1997) (footnote omitted). The Seventh Circuit has explicated the requisite analysis, which differentiates the objective and subjective components, specifies the evidence relevant to the subjective standard, and explains why that evidence in that case satisfied the objective standard. Daniels v. Essex Group, Inc., 937 F.2d 1264, 1272-75 (7th Cir. 1991).

Courts have struggled with the question of whether the "reasonable person" standard refers to any reasonable person, or, more contextually, to a reasonable person of the same race or gender as the harassed employee. Compare Watkins v. Bowden, 105 F.3d 1344, 1356 (11th Cir. 1997) (per curiam) (upholding "reasonable person" jury instruction instead of "reasonable African American or woman" jury instruction) with West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995) ("reasonable person of the same protected class in that position"). The Eleventh Circuit noted the divergent approaches taken by the courts on this issue. Watkins, 105 F.3d at 1356 n.22 (collecting cases). Courts which have adopted the generic "reasonable person" standard have taken a literal reading of Harris (a sexual harassment case), which referred to "a reasonable person" and not to "a reasonable woman." Harris, 510 U.S. at 21.

However, the Supreme Court's 1998 Oncale decision may be construed to have recast this issue by emphasizing "that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Although Oncale did not discuss the split in the courts between "reasonable person" and "reasonable person of plaintiff's (race/gender)," the Supreme Court has set forth an analysis based upon the objective reasonable person standard, looking at "the social context in which particular behavior occurs and is experienced by its target" which inevitably "depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Id. at 81-82. It is difficult to conceive of a "social context" under which sexual, let alone racial, harassment would not be found offensive, but Oncale may permit the harassed employee to argue that the harassment should be judged from the perspective of a person of her own gender, race or ethnic group, and not that of society at large.

The Second Circuit, in Richardson, rejected the narrow "reasonable person of the plaintiff's group" approach in favor of determining "whether a reasonable person who is the target of discrimination would find the working conditions so severe or pervasive as to alter the terms and conditions of employment for the worse." Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 436 (2d Cir. 2000). The Second Circuit concluded that the narrower approach would be misleading and incongruent with the goals of Title VII:

In adopting this standard as the proper one under Title VII, we reject the view of those courts that look to the perspective of the particular ethnic or gender group, e.g., a "reasonable African-American" or a "reasonable Jew." . . . we believe that examining hostile environment claims from the perspective of a "reasonable person who is the target of racially or ethnically oriented remarks" is the proper approach. First, Title VII seeks to protect those who are the targets of such conduct, and it is their perspective, not that of bystanders or the speaker, that is pertinent. Second, this standard makes clear that triers of fact are not to determine whether some ethnic or gender groups are more thin-skinned than others. Such an inquiry would at best concern largely indeterminate and fluid matters varying according to location, time, and current events. It might also lead to evidence, argument, and deliberations regarding supposed group characteristics and to undesirable, even ugly, jury and courtroom scenes.

Id. at 436 n.3 (internal citations omitted).

The standards of what might be acceptable in society at large do not always correspond to what is legally acceptable in the workplace. Torres, 116 F.3d at 633 n.7 ("What is, is not always what is right, and reasonable people can take justifiable offense at comments that the vulgar among us, even if they are a majority, would consider acceptable."). As the Federal Circuit, in discussing sexual harassment, remarked: "The purpose of Title VII is not to import into the workplace the prejudices of the community, but through law to liberate the workplace from the demeaning influence of discrimination, and thereby to implement the goals of human dignity and economic equality in employment." King v. Hillen, 21 F.3d 1572, 1582 (Fed. Cir. 1994).

However, a district court took a somewhat jaundiced view of sexual harassment claims, stating that because public sexual conduct was pervasive in modern society, the threshold for workplace claims was somehow higher:

The question of what is "sufficiently severe" sexual harassment is complicated because: (a) courts routinely remind plaintiffs that "Title VII is not a federal civility code," . . . ; (b) the modern notion of acceptable behavior -- as corroded by instant-gratification driven, cultural influences (e.g. lewd music, videos, and computer games, "perversity-programming" broadcast standards, White House "internal affairs" and perjurious coverups of same, etc.) has been coarsening over time; therefore, (c) what courts implicitly ask the "Title VII victim" to tolerate as mere "boorish behavior" or "workplace vulgarity" must, once placed in the contemporary context, account for any "Slouch Toward Gomorrah" societal norms might take.

Breda v. Wolf Camera, Inc., 148 F. Supp. 2d 1371, 1375-76 (S.D. Ga. 2001). Indeed, this court somewhat cynically claimed that the divergent approaches taken in the case law merely reflected a distinction between "sensitive judges" and "judges desensitized by contemporaneous, 'Vulgarians-at-the-Gate' cultural standards." Id. at 1377. The court, after granting summary judgment to the employer, notwithstanding plaintiff's exhaustive list of sexually harassing conduct in the workplace, admitted that: "Concededly, a judge with sensitivities less dulled by contemporary vulgarianism might conclude otherwise here." Id. at 1381; see generally R.R. McDonald, "Modern 'Vulgarism' May Doom Sex Harassment Laws, Says Federal Judge," Fulton County Daily Report, July 10, 2001.

If the plaintiff did not perceive the alleged harassment as abusive, then there can be no violation of Title VII. For example, the Sixth Circuit affirmed the grant of summary judgment to the employer, because the plaintiff "failed to show that the anonymous communications were subjectively hostile." Newman v. Federal Express Corp., 266 F.3d 401, 405 (6th Cir. 2001). Here, the plaintiff, in his deposition, "admitted that he did not consider the racially-charged letter a 'big deal,' and was not surprised, shocked or disturbed by it. When asked if he was going to lose sleep over the letter, Newman replied, 'Oh, no.' Newman referred to the message left on his voice mail as 'silly.'" Id. at 406. Since the plaintiff did not perceive the work environment as subjectively hostile, he could not prove a prima facie case of harassment. Id.

A district court rejected the employer's argument that the plaintiff welcomed the behavior in question by virtue of her own workplace conversations. Morton v. Steven Ford-Mercury of Augusta, Inc., 162 F. Supp. 2d 1228, 1230 (D. Kan. 2001). The court recognized that resolution of this issue "turns primarily on credibility determinations which are inappropriate for summary judgment." Id. at 1239. Nonetheless, the court readily disposed of the employer's argument:

First, defendant argues that plaintiff's discussion of nude sunbathing and topless fishing in the work setting suggests that she welcomed conversations of a sexual nature. The court disagrees. . . . according to plaintiff's testimony, she intended to engage in such discussions only with a female coworker and that the conversations became more widely known only because Owens would eavesdrop on plaintiff. The context of the conversations thus does not suggest that plaintiff was, in any way, welcoming nonconsensual talk of a sexual nature from male coworkers.

Id. Hence, the district court found that the plaintiff did not welcome the harassing conduct.

A division of the California Court of Appeal held that a defendant could go to trial on a defense that the context of the alleged harassment justified its existence, in a case involving an assistant to several screenwriters for the popular television show "Friends." Lyle v. Warner Bros. TV Prod., 117 Cal. App. 4th 1164, 12 Cal. Rptr. 3d 511, 93 FEP Cases 1401 (2004). Here, one of the plaintiff's primary job responsibilities was to serve as a "note-taker" during the male screenwriters' brainstorming sessions. She complained that the screenwriters made frequent sexist remarks and gestures that had little, if anything, to do with the plot lines for "Friends" and instead constituted harassment of her. Although the California Court of Appeal held that the plaintiff could state a sexual harassment claim under the California statute (which is comparable to Title VII), the court also held, pursuant to Oncale, that the trier of fact could take into consideration the context in which this harassment occurred. The court noted that defendants had argued that the conduct "does not support liability here because 'the writers were only doing their job'" by "creat[ing] jokes, dialogue and story lines for an adult-oriented situation comedy." Id. at 1174-75. The court recognized that "Defendants' arguments appears to be unique in the annals of sexual harassment litigation. Nevertheless we find defendants' theory of 'creative necessity' has merit under the distinctive circumstances of this case and defendants are entitled to pursue their theory at trial." Id. at 1175. Thus, "defendants may be able to convince a jury the artistic process for producing episodes of 'Friends' necessitates conduct which might be unacceptable in other contexts." Id. at 1177.

On July 21, 2004, the California Supreme Court granted the employer's petition for review on two issues: "(1) Can the use of sexually coarse and vulgar language in the workplace constitute harassment based on sex within the meaning of the Fair Employment & Housing Act (FEHA) (Gov. Code, section 12900 et seq.)? (2) Does the potential imposition of liability under FEHA for sexual harassment based on such speech infringe on defendants' rights of free speech under the First Amendment or the state Constitution." Lyle v. Warner Bros. TV Prod., No. S125171, 16 Cal. Rptr. 331, 94 P.3d 476 (2004). On April 20, 2006 the California Supreme Court reversed the Court of Appeal and found "based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes," no reasonable trier of fact could conclude that the language and conduct complained of constituted an objectively hostile work environment. Lyle v. Warner Bros. TV Prod., 132 P.3d 211 (2006). The California Supreme Court agreed with the defendant that the context in which the comments were made insulated the defendant from liability, stating, "the record shows that the instances of sexual antics and sexual discussions. . . were not aimed at plaintiff. . [t]hat writers commonly engaged in discussions of personal sexual experiences and preferences and used physical gesturing while brainstorming and generating script ideas for this particular show was neither surprising nor unreasonable from a creative standpoint." Id. at 225. The court also drew into question whether the plaintiff subjectively perceived the comments and gestures as hostile, noting that she had stated in deposition that her experience was, "like being in a junior high locker room," and described the writers as "pimply faced teenagers" and "silly little boys." Id. at 289.

E. Harassment Because of Sex or Race; Gender Stereotyping.

It is not sufficient merely to show that the hostile work environment plaintiff was a member of a protected group; the plaintiff "must show that 'but for' his race [or sex] he would not have been the victim of the alleged discrimination [harassment]." Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998); see also Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (no racial harassment where "the record reveals the intimidation, ridicule, and insult were directed indiscriminately, not targeted at [plaintiff] due to his race"). Conclusory statements alone are insufficient; there must be "specific evidentiary support" for plaintiff's claim "that the alleged acts of mistreatment were based on his race." Causey, 43 F.3d at 802. When the plaintiff can present "a showing that race is a substantial factor in the harassment, and that if the plaintiff had been white she would not have been treated in the same manner," then plaintiff has satisfied this element. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996).

The Supreme Court has emphasized the "but for" pleading requirement for harassment claims: "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discriminat[ion] . . . because of . . . sex.'" Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998).

The Oncale Court expressly held "that nothing in Title VII necessary bars a claim of discrimination 'because of . . . sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex." Id. at 79. Therefore, Title VII, and state anti-discrimination statutes modeled after Title VII, reach same-sex harassment, regardless of whether the harassment arose from "proposals of sexual activity" or from "general hostility to the presence of women in the workplace." Id. at 80. Thus, "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Id. Although Oncale was a sexual harassment case, + its holding should be equally applicable to racial harassment cases: workplace harassment by a person of one race against another person of the same race, which is motivated by the aforementioned "general hostility to the presence of [persons of the same race] in the workplace" would be an equivalent violation of Title VII.

The Third Circuit set forth three alternative theories by which same-sex sexual harassment can be proven under Title VII:

There are several situations in which same-sex harassment can be seen as discrimination because of sex. The first is where there is evidence that the harasser sexually desires the victim. . . . [The second is where] the harassment was caused by a general hostility to the presence of one sex in the workplace or in a particular work function. . . . [The third] by presenting evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.

Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 262-63 (3d Cir. 2001).

The following cases illustrate what happens when (1) there is severe sexual harassment that is not based on the employee's sex (and is not actionable), or (2) when the harassment is seemingly based on sexual orientation but in fact can be deemed to be based on sexual stereotypes (and is therefore actionable).

In Chavez v. Thomas & Betts Corp., 396 F.3d 1088 (10th Cir. 2005), the Tenth Circuit upheld plaintiff's same-sex sexual harassment award. The court found a female supervisor's humiliating comments and behavior toward female employees and her physical assaults against plaintiff demonstrated, "a very hostile and bitter attitude toward women in general." The supervisor referred to women employees as "bitches" commented on plaintiff's body parts, encouraged male employees to sexually harass her, asked plaintiff who she had sex with, and "what kind of toys" she used, and inquired about her underwear, bra, and the color of her pubic hair in front of male co-workers. The supervisor also assaulted plaintiff on two occasions, opening her shirt to expose her bra to co-workers and pulling down plaintiff's pants to expose her underwear. The supervisor did not treat men in a similar fashion, but rather had a more "congenial" attitude toward male employees. Relying on Oncale, the court found that the harasser's conduct constituted discrimination "because of sex". Id.

In Dick v. Phone Directories Co., 397 F.3d 1256 (10th Cir. 2005), the Tenth Circuit found that plaintiff, a female sales representative, could proceed with her sexual harassment claim after presenting evidence that the court found sufficient to assert that the improper conduct she alleged was "based on sexual desire" without a showing that the female alleged harassers were homosexual. The court outlined the three theories of actionable same sex harassment outlined in Oncale, but held that the plaintiff met her burden for summary judgement purposes through the first route, by alleging harassment motivated by sexual desire regardless of sexual orientation. Id.

In Rizzo v. Sheahan, 266 F.3d 705 (7th Cir. 2001), the plaintiff, an employee of the Cook County Sheriff's Department, alleged sexual harassment by her supervisor. The district court granted summary judgment, holding that the alleged conduct was not severe or pervasive. The Seventh Circuit disagreed, finding that the conduct was severe, but ultimately affirmed, on the grounds that the harassment did not occur because of the employee's sex. The employee alleged that after her fifteen-year old daughter (Jennifer) came to the worksite at the end of the shift, her supervisor (Mahon), upon learning from another officer that Jennifer was Rizzo's daughter, first asked Rizzo if Jennifer was her daughter and then said, "Well, I'd like to fuck her." Id. at 709. Several months later, Mahon approached Rizzo again, saying that he had recently seen Jennifer at a restaurant, commented that Jennifer was very attractive and reiterated that he "would like to fuck" her daughter. Id. On a third occasion, Mahon walked by Rizzo, "looked [her] over, and stated in a suggestive manner that he wished he was Rizzo's husband." Id.

On the one hand, the Seventh Circuit readily disagreed with the district court, and concluded that these three incidents were sufficiently severe or pervasive to be actionable. Id. at 711-12. The Seventh Circuit noted that "Indeed, as a mother, it may be more disturbing to be subjected to these comments than to be personally to subjected to many of the types of unwanted sexual advances we have seen in reviewing other harassment claims." Id. at 712. On the other hand, the Seventh Circuit held that this harassment did not occur because of Ms. Rizzo's sex. In fact, as Ms. Rizzo documented through her appellate briefs and the oral argument, her position was that Mahon's harassment arose from his animosity towards her husband, who was also an investigator in the sheriff's department, and she explained "that this animosity was the reason Mahon was 'going after' [her]." Id. at 712-13. Thus, "this case presents the unique situation where the plaintiff has produced clear evidence that the harassing behavior was not motivated by sex, and thus does not comply with the requirements of Title VII." Id. at 713.

Thus, it is necessary for the plaintiff to allege that the sexual harassment was, in fact, based on the plaintiff's gender. For example, the Eighth Circuit upheld the grant of summary judgment on a plaintiff's harassment claims where the plaintiff was "backhanded in the scrotum" by a co-worker on several occasions, on the grounds that the plaintiff "offered no evidence of [the co-worker's] motivation, much less that [co-worker] was motivated by a hostility toward men." Linville v. Sears, Roebuck & Co., 335 F.3d 822, 824 (8th Cir. 2003) (per curiam). Similarly, the Seventh Circuit held that the plaintiff's allegations of sexual harassment could not go forward, because "his litany of complaints about the actions of his coworkers inescapably relate to either Hamm's coworkers disapproval of his work performance or their perceptions of Hamm's sexual orientation," neither covered by Title VII. Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1062 (7th Cir. 2003).

In Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864 (9th Cir. 2001), Antonio Sanchez, one of the three plaintiffs, alleged that he was repeatedly taunted by his male co-workers and a supervisor because, in essence, he did not act like a man. Specifically, his co-workers and a supervisor (1) "repeatedly referred to Sanchez in Spanish and English as 'she' and 'her;'" (2) "mocked Sanchez for walking and carrying his serving tray 'like a woman;'" (3) "taunted him in Spanish and English, as, among other things, a 'faggot' and a 'fucking female whore;'" and (4) "derided [him] for not having sexual intercourse with a waitress who was his friend." Id. at 870, 874. Critically, "no witness - including the supervisor accused of participating in the harassment - testified to the contrary." Id. at 872.

The Ninth Circuit agreed that Mr. Sanchez was discriminated against on the basis of his sex, because he failed to conform to a male stereotype. The Ninth Circuit applied Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that Title VII was violated where the employer discriminated against a female employee who did not conform to sexual stereotypes of how women should behave, to hold that Title VII is similarly violated where a male employee is discriminated against for not conforming to stereotypes of how men should behave. Azteca Restaurant, 256 F.3d at 874-75.

Similarly, in Singleton v. United States Gypsum Company, 140 Cal.App.4th 1547 (2006), a California Court of Appeal found same sex harassment constituted unlawful discrimination on the basis of sex, in violation of California's Fair Employment Practices Act, which, although it also protects against sexual orientation discrimination, is interpreted consistent with Title VII. In Singleton, plaintiff alleged he was subjected to persistent verbal harassment and taunts by male co-workers who referred to him as "sing-a-ling" (a reference to a homosexual movie character), assertions that he was having oral sex with his supervisor, and threats of violent sexual attack. When plaintiff complained, his supervisors told him "just tell him f**k you and keep working," and instructed him to "just ignore" the harassment and "do your job." The Court of Appeal found that the harassment the plaintiff was subjected to constituted unlawful harassment "because of sex". Relying on Oncale, the court noted that gender-based harassment need not be motivated by sexual desire to be actionable, "Sexual harassment occurs as in this case when sex is used as a weapon to create a hostile workplace." Id. at 1564. These cases show that harassment that, at first glance, appears to be based on sexual orientation, can be actionable under Title VII where it is grounded in sexual stereotypes. In contrast, where the plaintiff insists that the harassment was based on his or her sexual orientation, then there can be no Title VII claim. See, e.g., Bianchi v. Philadelphia, 183 F. Supp. 2d 726, 737-38 (E.D. Pa. 2002) ("His unwavering persistence in presenting his complaint as one concerning his alleged sexuality, rather than one concerning his alleged failure to meet a masculine ideal, defeats his Title VII harassment claim.") (distinguishing Azteca Restaurant); see generally S. Duffy, "Gay Bias Case Fails, but Judge Approves 'Stereotype' Theory," Legal Intelligencer (Philadelphia), May 28, 2003.

A district court in New York recently held that a gay employee (Sabo) who was repeatedly taunted and harassed by his co-workers who did not believe or know that he was gay could, in fact, state a Title VII sexually hostile work environment claim. EEOC v. Grief Bros. Corp., No. 02-CV-468S, 2004 WL 2202641 (W.D.N.Y. Sept.30, 2004). Critical to the resolution of the Title VII harassment claim was the deposition testimony of the harassing co-workers, who testified that they "did not know that he was a homosexual, nor did they believe that he was." Id. at *10. As a result, the court denied the defendant's motion for summary judgment, because "there is sufficient evidence in the record from which a jury could find that Sabo was not harassed because he is a homosexual, but rather, was harassed because he is a male." Id. at *11. Under Price Waterhouse and Oncale, Sabo's "nonconformance with gender stereotypes" meant that the resulting harassment of him was actionable under Title VII. Id. at *12-*13.

A new issue involves transgendered employees. The Sixth Circuit recently held that an employee who alleged that discrimination occurred because the employee was undergoing treatment for "gender identity disorder" which resulted in the employee's appearance becoming more feminine, could state a Title VII claim for gender discrimination. Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). Here, the co-workers "began questioning him about his appearance and commenting that his appearance and mannerisms were not 'masculine enough,'" and a supervisor met with the city's attorney "with the intention of using Smith's transexualism and its manifestations as a basis for terminating his employment" through requiring the plaintiff "to undergo three separate psychological evaluations" which they hoped would lead to his resignation or refusal to comply, the latter of which would be grounds for terminating his employment for insubordination. Id. at 568, 569. The Sixth Circuit agreed that, under Price Waterhouse, Azteca Restaurants and similar gender stereotyping cases, Mr. Smith had stated a case for sex stereotyping and gender discrimination based on "his failure to conform to sex stereotypes concerning how a man should look and behave." Id. at 572. The defendants' petition for rehearing en banc was denied on October 18, 2004.

In another case, Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), the Sixth Circuit drew upon Smith and held that a pre-operative male to female transsexual who failed th probationary period required to become a police sergeant was a member of a protected class when he alleged discrimination on the basis of a failure to conform to gender stereotypes. The court stated, "sex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination irrespective of the cause of that behavior; a label, such as "transsexual" is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his gender non-conformity." Id. at 737. Although Smith and Barnes did not involve harassment claims, the conduct may have been sufficient to bring such claims, based on the co-workers' verbal and physical conduct.

The Ninth Circuit, in an en banc decision, held that essentially all same-sex harassment can be actionable under Title VII. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 922 (2003). It should be noted that there was a concurring opinion based on a different rationale, two other concurring opinions, and a strongly stated dissenting opinion, so it is possible that other circuits may not follow the lead opinion. Cf. Vickers v. Fairfield Medical Ctr., 453 F. 3d 757 (6^th Cir. 2006) (distinguishing Smith and holding that the harassment about which the plaintiff complained was "more properly viewed as based on Vickers' perceived homosexuality, than on his gender non-conformity" because he "failed to allege that he did not conform to gender stereotypes in an observable way at work.") (emphasis added). In Rene, the plaintiff was an openly gay butler at a Los Vegas hotel, who alleged that he was constantly harassed by his supervisor and several co-workers (all male), because he was gay. Id. at 1064. The district court granted summary judgment on the grounds that Title VII did not cover discrimination based on sexual preference. Id. A panel of the Ninth Circuit affirmed, but the en banc court reversed, on the grounds that the plaintiff "has alleged physical conduct that was so severe or pervasive as to constitute an objectively abusive working environment," reaching the level of physical assault, i.e., the supervisor and co-workers "grabbed [the plaintiff's] crotch and poked their fingers in his anus." Id. at 1065. The Ninth Circuit cited a variety of appellate cases in which "physical sexual assault has routinely been prohibited as sexual harassment under Title VII," because "such harassment -- grabbing, poking, rubbing or mouthing areas of the body linked to sexuality -- is inescapably 'because of sex.'" Id. at 1065-66 (collecting cases). Thus, his sexual orientation was not relevant, since in traditional male-on-female harassment cases, the victim was not denied relief because she "was, or might have been, a lesbian. The sexual orientation of the victim was simply irrelevant. If sexual orientation is irrelevant for a female victim, we see no reason why it is not also irrelevant for a male victim." Id. at 1066; see also M. Talbot, "Men Behaving Badly," N.Y. Times Sunday Magazine, Oct. 13, 2002, at 52.

The Fifth Circuit applied Oncale to hold that same-sex harassment could be actionable under Title VII where the conduct constituted discrimination because of sex, where the harasser was gay and made advances upon the plaintiff. La Day v. Catalyst Tech., Inc., 302 F.3d 474 (5th Cir. 2002). Critically, the plaintiff was able to show that the harasser made sexual advances to both the victim and to other employees. Id. at 480. Further, the harassment was not in the nature of "male-on-male horseplay," but was so severe and pervasive as to constitute a hostile work environment. Id. at 483.

Related to this issue is the so-called "equal opportunity harasser," i.e., a person who indiscriminately harasses both males and females, or both minorities and non-minorities. For example, the Seventh Circuit held that a married couple, who worked in the same office where each was sexually harassed by an allegedly bisexual supervisor who solicited sex from each, could not state a sexual harassment or discrimination claim under Title VII. Holman v. Indiana, 211 F.3d 399, 402-07 (7th Cir. 2000). The Seventh Circuit applied the Oncale holding, namely that discrimination or harassment must be "on the basis of sex," id. at 403, but held that "both sexes are treated badly" which did not constitute discrimination under Title VII. Id. at 404.

However if women suffer more severely from the harassment directed at both men and women, a Title VII claim may still survive. In EEOC/Christopher v. Nat'l Educ. Assn.,422 F.3d 840 (9th Cir. 2005), the court found in favor of three female union members who brought a sexual harassment case against their Union Executive Director. The Director was alleged to have severely verbally harassed both male and female Union members, shouting, screaming, and using foul language and making threatening physical gestures. The women reported feeling physically threatened, fearful, and "in jeopardy", and experienced crying, panic attacks, and resignation, as a result of the Director's conduct. The District Court granted summary judgment on the grounds that the alleged harassment was not "because of sex". The Ninth Circuit reversed holding that the ultimate question for the jury was whether the women were treated worse and subjected to "more severe and frequent physically threatening abuse." See also, Petrosino v. Bell Atlantic, 385 F.3d 210 (2nd Cir. 2004) (reviving a female telephone technician's sexual harassment claim where both male and female employees were exposed to sexually offensive material, and finding that a jury could reasonably conclude that the sexual remarks and graffiti were more demeaning of women than of men.)

If a supervisor and an employee previously had a consensual relationship, which was broken off by the employee, and the employee rejected the supervisor's attempt to renew the relationship, upon which the supervisor commenced harassing the employee, then the employee can maintain a hostile work environment claim notwithstanding their prior relationship. Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642, 656 (5th Cir. 2002). The Fifth Circuit agreed with the district court's application of Oncale to find that since "it was only after the relationship ended that Richardson began to harass her. This fact alone supports a jury's inference that he harassed her because she refused to continue to have a casual sexual relationship with him." Id. at 657.

If a supervisor has an affair with one or more subordinates, whom he then promotes or otherwise favors over the remaining coworkers, then those coworkers may be able to state a harassment claim on the grounds that sexual favoritism is a form of sexual harassment, but only if they can show that the consensual relationship "was so indiscreet as to create a hostile work environment" or there was "other pervasive conduct by [the supervisor] which created a hostile work environment." Proskel v. Gattis, 41 Cal. App. 4th 1626, 49 Cal. Rptr. 2d 322, 69 FEP Cases 1433, 1434 (Cal. Ct. App. 4th Dist. 1996). However, most courts have held that a consensual workplace relationship, by itself, did not create a sexually hostile work environment as to other employees. Id. (collecting cases). The California Supreme Court granted certiorari on this issue, in a case in which the female plaintiffs alleged that they were harassed by the supervisor and his female paramour in order to intimidate them from complaining about the paramour's improper promotion. Miller v. Department of Corrections, 130 Cal. Rptr. 2d 57, 90 FEP Cases 1651 (Cal. Ct. App. 3d Dist. 2003), cert. granted, No. S114097, 67 P.3d 647, 133 Cal. Rptr. 2d 323 (Cal. 2003). The California Supreme Court reversed the decision of the Court of Appeal and held that an employee may establish an actionable claim for sexual harassment "widespread sexual favoritism was severe or pervasive enough to constitute a sexually hostile work environment," under the California Fair Housing and Employment Act. Miller v. Dept. of Corrections, 46 Cal. 4^th 446, 115 P.3d 77, 90 (Cal. 2005). The court further held that plaintiff's had established a prima facie case where there was evidence that defendant supervisor engaged in three sexual affairs spanning several years, advancement in the workplace was based on sexual favors, not superior qualifications, and that the offending supervisor viewed and treated female employees in a demeaning fashion as "sexual playthings." Id. at 91.

Another type of sex stereotyping that may have increasing relevance in the law of harassment is family responsibility discrimination, where a employees, especially women, are discriminated against based on her upcoming parental or familial status. Recent cases suggest that evidence of stereotyping may soon play an expanded role in gender discrimination cases. In a recent landmark Second Circuit case, Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 119 (2d Cir. 2004), the court extended the Price Waterhouse stereotyping analysis and held that negative employment action based on stereotypes about a woman's ability to perform as both a good mother and a good employee violated the Equal Protection Clause and Title VII. Deciding for the plaintiff, the court acknowledged the negative impact that gender based stereotypes have on women in the workplace stating, "the principle of Price Waterhouse, furthermore, applies as much to the supposition that a woman will conform to a gender stereotype (and therefore will not, for example, be dedicated to her job), as to the supposition that a woman is unqualified for a position because she does not conform to a gender stereotype."). The Back holding is particularly significant because it suggests that even where no comparator is found, a discrimination plaintiff may prevail if it can be established that gender stereotyping played a role in the employment decision. Id. at 113.

An example of how this may affect harassment cases is the court's use of stereotyping analysis in Plaetzer v. Borton Automotive, Inc. 2004 WL 2066770 (D. Minn. 2004). In Plaetzer, the court denied defendant's motion for summary judgment on plaintiff's hostile work environment claim, rejecting defendant's argument that the discrimination in question was merely "parental discrimination" where plaintiff was denied a set schedule and singled out for excessive monitoring by employer. The supervisor told the plaintiff that she should "do the right thing" and stay home with her children, mentioned that his wife, who stayed at home, had no childcare problems and that as a woman with a family she would always be at a disadvantage at the company. The court noted that "where an employer's objection to an employee's parental duties is actually a veiled assertion that mothers, because they are women, are insufficiently devoted to work, or that work and motherhood are incompatible, such treatment is gender based and properly addressed under Title VII."

F. Conduct Sufficiently Pervasive or Severe.

1. The Quantity of Harassing Conduct.

This element is not one of mathematical precision, but represents the reality that a line must be drawn along the spectrum between the extremes of a few isolated stray remarks and an ongoing, pervasive barrage of harassing conduct. The Supreme Court has differentiated between the workplace (1) that is "permeated with 'discriminatory intimidation, ridicule, and insult,'" and (2) where there is the "'mere utterance of an . . . epithet which engenders offensive feelings in an employee' [that] does not sufficiently affect the conditions of employment to implicate Title VII." Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 65, 67).

The circuit courts have struggled to draw the line between actionable and non-actionable harassment. Compare Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (harassment based on twelve incidents during twenty month period) and Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (harassment "on a daily basis") and West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995) (harassment "occurred consistently" over five year period) with Gregory v. Widnall, 153 F.3d 1071, 1075 (9th Cir. 1998) (per curiam) (single incident of racial harassment "is not sufficient to raise a jury question") and Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) ("two overtly racial remarks . . . and one arguably racial comment" over an eight year period "were not pervasive [and] they are insufficient to be actionable") and Powell v. Missouri State Highway & Transp. Dep't, 822 F.2d 798, 801 (8th Cir. 1987) ("Title VII, however, is not necessarily violated by a few isolated racial slurs").

Thus, practitioners should bear in mind that there is, and can be, no "bright-line" rule for this element. As the Seventh Circuit has remarked:

The number of instances of harassment is but one factor to be considered in the examination of the totality of the circumstances. A Title VII plaintiff does not prove racial harassment or the existence of a hostile working environment by alleging some 'magic' threshold number of incidents. Conversely, an employer may not rebut a claim simply by saying that the number of incidents alleged is too few.

Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273-74 (7th Cir. 1991); accord West, 45 F.3d at 757 (not necessary for plaintiff to prove "daily contact with the harasser"). The courts have noted that the plaintiff need not directly experience the harassment to suffer from a hostile work environment. See, e.g., Schwapp, 118 F.3d at 111 ("Just as a racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment, the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment.") (citations omitted).

2. The Continuing Violation Doctrine.

The courts have recognized that the "continuing violation" doctrine may be used to show that there is "an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998) (internal citation omitted). This allows the harassment plaintiff to include conduct occurring prior to Title VII's statutory 300-day deadline or the applicable Section 1981 statute of limitations period. Id. at 238. The Supreme Court, in 2002, held that the continuing violation doctrine could be applied to harassment claims, but not to other kinds of discrete discrimination claims. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

On the one hand, discrete discrimination claims, based on acts "such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify," id. at 114, and each such act "starts a new clock for filing charges alleging that act." Id. at 113. Even if the employee does not file a charge based on older discrete acts, that employee can still use "the prior acts as background evidence in support of a timely claim." Id.

On the other hand, harassment claims are fundamentally different from those based on discrete employment acts:

Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conducts. The "unlawful employment practice" therefore 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.

Id. at 115 (internal citations omitted). For this reason, the Supreme Court rejected the reasoning of several circuits that a plaintiff could not include harassing conduct that occurred prior to the statute of limitations:

Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.

Id.. at 117. Therefore, the harassment plaintiff can recover damages for the entire course of harassment, in contrast to the plaintiff who alleges discrete a