Harassment in the Workplace

Debra S. Katz and Alan R. Kabat
July 29-31, 2004

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 EEOC's most recent enforcement statistics show there were 13,566 sexual harassment charges filed during fiscal year 2003, which represented almost 56% of all gender-based charges; the remainder were gender discrimination charges. See EEOC, "Enforcement Statistics" (Mar. 8, 2004) . 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.

A 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 3 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). 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 4 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, 123 S. Ct. 1673 (2003). The Court held that the EEOC's six-factor analysis would be particularly useful in making this determination: 5 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)). The Court seemed to lean towards finding that these shareholder-employees would not be statutory employees, but remanded to the district court for further fact finding. Id. at 451 & n.11. The parties are currently engaged in discovery, which is scheduled to close on July 27, 2004.

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 6 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 the 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 2 The district courts have similarly held that nominal "partners" who lacked equity and significant control were employees. See, e.g., Rosenblatt v. Bivona & Cohen, P.C., 969 F. Supp. 207, 215 (S.D.N.Y. 1997) (non-equity law "partner" who could be terminated at will); Caruso v. Peat, Marwick, Mitchell & Co., 664 F. Supp. 144, 147-51 (S.D.N.Y. 1987) (salaried accountant "partner"); Jones v. Baskin, Flaherty, Elliot & Mannino, P.C., 670 F. Supp. 597, 602 (W.D. Pa. 1987) (salaried attorney "partner" who had no management control). 7

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 the 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.
8 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 9 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 not set forth an analytical framework for racial harassment claims, although it has recognized the analogy to 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. This circuit also has not expressly discussed racial harassment claims under either analytical framework. 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. 10 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 not expressly analyzed racial harassment claims. However, the Fifth 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). 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, 11 674 (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.
12 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 13 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). 14 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. 15 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., 17 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. It remains to be seen whether the jury will find this "creative necessity" defense (analogous to the business necessity defense in disparate impact cases) to be sufficiently convincing.
E. Harassment Because of Sex or Race.
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 16 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" is 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), cert. denied 534 U.S. 1155 (2002). 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 17 seemingly based on sexual orientation but in fact can be deemed to be based on sexual stereotypes (and is therefore actionable). 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 18 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. This case shows 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 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, 572 (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 568-69. The Sixth Circuit agreed that, under Price Waterhouse, Azteca Restaurants and similar sex stereotyping cases, the plaintiff 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 Sixth Circuit recently upheld a jury verdict under this reasoning in a case that the Supreme Court then declined to review. See Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005), cert. denied, S. Ct. , No. 05-292, 2005 WL 2922504, at *1 (Nov. 7, 2005). Although the issue may not yet be ripe for review, it seems likely that a circuit split will soon develop. At least one other federal court has rejected Smith's reasoning and concluded that transgendered plaintiffs cannot translate their claims of discrimination into sex stereotyping cases under Price Waterhouse. See Etsitty v. Utah Transit Auth., No. 2:04CV616 DS, 2005 WL 1505610, at *5 19 (D. Utah June 24, 2005) ("There is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman."). Another type of sex stereotyping concerns so-called "mommy-track" stereotyping, where a woman is discriminated against based on her upcoming parental or familial status. Back v. Hastings on Hudson Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004). The Second Circuit found that the plaintiff, a school psychologist, could state Title VII and Section 1983 claims where the employers attempted to deny her civil service tenure, and gave her negative evaluations, after they questioned her ability to perform her job and "be a good mother." Although this cases concerned discrimination, not harassment, the "mommy-track" stereotyping issue is also likely to arise in the harassment context. 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, 123 S. Ct. 1573 (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. 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, 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 generally M. Talbot, "Men Behaving Badly," N.Y. Times 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 20 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. 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. Mackey v. Department of Corrections, 105 Cal. App. 4th 945, 130 Cal. Rptr. 2d 57, 90 FEP Cases 1651 (Cal. Ct. App. 3d Dist. 2003), cert. granted, 67 P.3d 647, 133 Cal. Rptr. 2d 323 (Cal. 2003); see generally M. McKee, "Can Co-Workers' Sex With Boss Create a Cause of Action?," The Recorder (San Francisco), Apr. 25, 2003. As of June 2004, briefing has been completed, but the case has not yet been set for oral argument.
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 21 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). 22 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 in her harassment suit 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 acts of discrimination. The Supreme Court did recognize that employers can raise defenses based on laches if the employee waits too long before filing a lawsuit. Id. at 121-22. In order to use the continuing violation doctrine, the plaintiff must first show "that at least one act occurred within the filing period." West, 45 F.3d at 754 (citing United Airlines, Inc. v. Evans, 431 U.S. 553, 558 (1977)). Then, the plaintiff must prove the requisite nexus among the individual incidents of discrimination or harassment. Id. at 755. The second determination can be made by considering the following three factors, which are non-exhaustive: (i) subject matter - whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence - whether the nature of the violations should trigger the employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. Id. at 755 n.9 (citing Martin v. Nannie and Newborns, Inc., 3 F.3d 1410 (10th Cir. 1993)). This determination must be made in "the particular context of individual employment situations 23 [which] requires a fact-specific inquiry that cannot easily be reduced to a formula." Huckabay, 142 F.3d at 239 (citing Berry v Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)). Many of the cases cited in the next section have also discussed whether the plaintiff could invoke the continuing violation theory to support their harassment claim. The result is that a plaintiff who satisfies the continuing violation doctrine can incorporate a much broader range of harassing conduct and can more readily meet the pervasive or severe conduct element. Yet, even those plaintiffs who cannot satisfy this doctrine may still be able to use untimely events as background evidence to support her claims based on the timely events.
G. Single Incident Harassment.
Most plaintiffs who allege a hostile work environment claim will base their claim on a series of incidents which they allege were sufficiently severe or pervasive that they adversely affect the terms and conditions of their employment. However, some plaintiffs will base their hostile work environment claim on a single incident. The courts have generally been reluctant to allow the latter category of claims, except where that single incident was so severe, such as an extreme physical assault or truly egregious verbal threats, that the incident materially altered the conditions of their employment. In Ellerth and Faragher, the Supreme Court did not have to address this issue because the underlying conduct involved a series of harassing incidents. See Ellerth, 524 U.S. at 754 ("The case before us involves numerous alleged threats, and we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment."); Faragher, 524 U.S. at 788 ("We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view."). In 2001, the Supreme Court held that, based upon the underlying facts alleged by the plaintiff, that a single incident of sexual harassment was not actionable. Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam). The plaintiff, during a meeting with her supervisor and another male employee, alleged that her supervisor read a psychological evaluation report in which one applicant said "I hear making love to you is like making love to the Grand Canyon." Id. at 269. The supervisor "read the comment aloud, looked at [plaintiff] and stated, 'I don't know what that means.' The other male employee then said, 'Well, I'll tell you later,' and both men chuckled." Id. The Supreme Court, without oral argument, reversed the Ninth Circuit and held that this single incident of alleged sexual harassment was not so severe or pervasive as to violate Title VII. Id. at 271. However, it must be emphasized that the Supreme Court did not hold that a single incident could never be actionable, merely that the incident alleged in this case was not actionable.
1. Single Incident Harassment Is A Hostile Work Environment.
The courts have recognized that single incidents that are sufficiently severe can constitute a hostile work environment. See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) ("the plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were 'sufficiently continuous and concerted' to have altered the 24 conditions of her working environment"); Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 439 (2d Cir. 2000) ("There is neither a threshold 'magic number' of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.") (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993)); Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598 (8th Cir. 1999) (the Ellerth/Faragher "defense, adopted in cases that involved ongoing sexually harassment in a workplace, may not protect an employer from automatic liability in cases of single, severe, unanticipatable sexual harassment"); Torres v. Pisano, 116 F.3d 625, 631 n.4 (2d Cir. 1997) ("Of course, even a single episode of harassment, if severe enough, can constitute a hostile work environment."); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) ("we agree with the district court that even 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"). In Little, a female employee was raped by a client following a business dinner. Little v. Windermere Relocation, Inc., 265 F.3d 903 (9th Cir. 2001). Ms. Little's position required her to develop and maintain client contacts for a Seattle real estate corporation. She was assigned to Starbucks, a potentially lucrative client. Id. at 908. During a client dinner with the Starbucks Human Resources Director, Dan Guerrero, after having several drinks, she "suddenly became ill and passed out," and then "awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drove her to her car." Id. (although the court opinion does not say so, one wonders if she was exposed to a date rape drug). Ms. Little was initially reluctant to report this rape, because "I knew how important the Starbucks account was to Mr. Glew [Windermere's President]." Id. When she did report the rape to another manager, that person "advised her not to tell anyone in management." Id. at 909. When she told a second manager, a person who was designated by Windermere as a "complaint receiving manager," that person told Ms. Little that "she wouldn't say anything to Glew unless I proceeded to seek legal action against Dan Guerrero." Id. Finally, Ms. Little told Mr. Glew of the rape, and he responded "that he did not want to hear anything about it," that she would have to discuss it with counsel, and that her salary was being reduced immediately by one-third. Id. When Ms. Little challenged this pay cut, she was terminated two days later. Id. at 909-10. The Ninth Circuit reversed the district court's grant of summary judgment, holding that the alleged conduct was sufficiently severe and pervasive to create a sexually hostile work environment. Id. at 911-12. Even if the three rapes in one evening were viewed as a single incident, that could suffice to "support a claim of hostile work environment because the 'frequency of the discriminatory conduct' is only one factor in the analysis." Id. at 911 (citing Breeden, 532 U.S. at 271). Thus, the Ninth Circuit held that Ms. Little's hostile work environment claim should be submitted to the jury to determine whether Windermere will be liable for Guerrero's conduct, which would occur "if a jury finds that it ratified or acquiesced in the rape by failing to take immediate corrective action once it knew or should have known of the 25 rape." Id. at 913. The strong language in the opinion makes it seem unlikely that Windermere will be able to prevail, given that its "response to the rape was equivocal at best." Id. In Turnbull, the plaintiff alleged that she was assaulted by a patient. Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001). The plaintiff, a psychologist at a state-run mental hospital, alleged sexual harassment based on a single sexual assault by a patient that occurred while the plaintiff and the patient were walking in the hospital grounds during an outdoors therapy session. Id. at 1242-43. The Tenth Circuit held that "an isolated incident may suffice if the conduct is severe and distressing." Id. at 1243. Indeed, this one incident "was objectively abusive, dangerous, and humiliating, and Dr. Turnbull was so traumatized she was unable to return to work thereafter." Id. at 1243-44. The Tenth Circuit rejected the defendant's arguments that because male staff members "were also subject to sexual comments or physical arguments by patients," such events could not constitute sexual harassment, because "conduct that affects both sexes may constitute sexual harassment if it disproportionately affects female staff." Id. at 1244. Here, the male staff "were not subject to the fear or the reality of sexual assault in the same manner as the female staff." Id. In Howley, the sole female firefighter in a municipal fire department was subjected to verbal assault during and after a meeting of the firefighters' benevolent association. Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000). During this meeting, a male firefighter (1) publicly shouted at her "to 'shut the fuck up, you fucking whining cunt;'" (2) "made further inappropriate remarks concerning [her] menstrual cycle;" (3) refused to apologize, yelling in her "direction that 'there is no fucking way that I will fucking apologize to the fucking cunt down there;'" and (4) telling plaintiff "to the effect that the reason she did not make assistant chief was because she did not 'suck cock good enough and only made lieutenant.'" Id. at 148. The Second Circuit reversed the dismissal of the hostile work environment claim, holding that this single incident was sufficiently severe to allow her hostile work environment claim to proceed: Although Holdsworth made his obscene comments only on one occasion, the evidence is that he did so at length, loudly, and in a large group in which Howley was the only female and many of the men were her subordinates. . . . It cannot be concluded as a matter of law that no rational juror could view such a tirade as humiliating and resulting in an intolerable alteration of Howley's working conditions . . . Id. at 154. The hostile work environment claim was remanded for trial. Id. at 156. In Lockard, a waitress was sexually harassed by two male customers who twice "grabbed her by the hair" and one customer "then grabbed her breast and placed his mouth on it." Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998). The Tenth Circuit found that this single incident was "physically threatening and humiliating behavior which unreasonably interfered with Ms. Lockard's ability to perform her duties as a waitress," id., so that: We therefore disagree with defendants' assertions that a single incident can never be sufficient to create an abusive environment. "Looking at all the 26 circumstances," as we must, we are persuaded that the record contains sufficient evidence to support the jury's conclusion that the harassing conduct of the customers was severe enough to create an actionable hostile work environment. Id. (quoting Harris, 510 U.S. at 23) (upholding jury verdict in favor of plaintiff on her hostile work environment claim). In Smith, a female prison guard was assaulted by a fellow guard [Gamble] on a single occasion: there was a dispute between the two guards, "during which Gamble called Smith a 'bitch,' threatened to 'fuck [her] up,' pinned her against a wall, and twisted her wrist severely enough to damage her ligaments, draw blood, and eventually require surgical correction." Smith v. Sheahan, 189 F.3d 529, 531 (7th Cir. 1999). Ms. Smith promptly complained to her supervisor, but the subsequent investigation "was an institutional shrug of the shoulders," during which "Investigator Sullivan made light of the incident and jokingly suggested that Smith should 'kiss and make up' with Gamble." Id. The Seventh Circuit held that: A jury would also be entitled to conclude that the assault Smith suffered was severe enough to alter the terms of her employment, even though it was a single incident. The district court held to the contrary; it opined that sex-based harassment can never be actionable unless it is repeated. This was error: the Supreme Court has repeatedly said, using the disjunctive "or," that a claim of discrimination based on the infliction of a hostile working environment exists if the conduct is "severe or pervasive." In any case, the ultimate question is thus whether the harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 533 (citations omitted). Therefore, the Seventh Circuit reversed the district court's grant of summary judgment on the hostile work environment claim. Id. at 535. The district courts, in a variety of circumstances, have similarly held that a single incident of harassment can constitute a hostile work environment claim. See, e.g., Flower v. Mayfair Joint Venture, 95 Civ. 1744 (DAB), 2000 WL 272187 (S.D.N.Y. Mar. 13, 2000) ("Plaintiff has demonstrated that DiPalma's physical attack on her was sufficiently severe to constitute a hostile work environment); Dunegan v. City of Council Grove, 77 F. Supp. 2d 1192, 1197-98 (D. Kan. 1999) (single incident where the supervisor "put his arms around plaintiff from behind . . . squeezed her, grabbed her right breast, and kissed her on both sides of the neck . . . he was sexually aroused during this encounter" was "sufficiently severe to create a hostile work environment"); Keefer v. Universal Forest Prods., 73 F. Supp. 2d 1053, 1055 (W.D. Mo. 1999) ("under proper circumstances a single incident of harassment can be actionable"); Fall v. Indiana Univ. Bd. of Trustees, 12 F. Supp. 2d 870, 879-80 (N.D. Ind. 1998) (single incident, where the supervisor "in his office with the door closed, forcibly grabbed and kissed the Plaintiff while forcing his hand inside her blouse to grope her breasts" was sufficiently severe to sustain a Title VII hostile work environment claim); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, 969-70 (D. Minn. 1998) ("A single sexual assault has a far greater potential to adversely 27 alter the work environment, and with greater permanence, than would an offensive verbal remark, or a series of such remarks."). This approach is consistent with the EEOC's 1990 "Policy Guidance on Current Issues of Sexual Harassment" (Mar. 19, 1990) (reprinted in the FEP Manual, at 405:6681-6701 and online at ). On the one hand, "Unless the conduct is quite severe, a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment." Id. at 405:6690. On the other hand, "a single unusually severe incident of harassment may be sufficient to constitute a Title VII violation; the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical." Id. at 405:6690-91.
2. Single Incident Harassment Is Not A Hostile Work Environment.
In contrast, the courts have generally held that single incidents (or a small number of incidents) that do not rise to the level of severity as those in the previous section fail to satisfy the requirements for a hostile work environment claim. For example, in Brooks, a telephone dispatcher was approached by a coworker who placed his hand on plaintiff's stomach, forced his hand under plaintiff's clothing to fondle her breast, and told her that she didn't "have to worry about cheating" on her husband. Brooks v. City of San Mateo, 229 F.3d 917, 921 (9th Cir. 2000). The Ninth Circuit recognized that "if a single incident can ever suffice to support a hostile work environment, the incident must be extremely severe," id. at 926, but that threshold was not met here, since "Brooks was harassed on a single occasion for a matter of minutes in a way that did not impair her ability to do her job in the long-term, especially given that the city took prompt steps to remove [the harasser] from the workplace." Id. However, the court did recognize that the outcome could be different if the harasser was the plaintiff's supervisor: A different question would arise if [the harasser] were Brooks' supervisor, rather than her co-worker. Because the employer cloaks the supervisor with authority, we ordinarily attribute the supervisor's conduct directly to the employer. Thus, a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim. Id. at 927 n.9 (citing Ellerth). In Quinn, there were only two timely incidents that formed the basis of plaintiff's hostile environment claim: that her supervisor (1) "told Quinn she had been voted the 'sleekest ass' in the office;" and (2) that he "deliberately touched [her] breasts with some papers that he was holding in his hand." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998). The Second Circuit did recognize that a single incident, if "sufficiently severe" could support a hostile work environment claim. Id. Here, however, the severity threshold was not met, since 28 while these two incidents "are obviously offensive and inappropriate, they are sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded Quinn's work environment. Nor are these incidents, together or separately, of sufficient severity to alter the conditions of Quinn's employment without regard to frequency or regularity." Id. The district courts, in a variety of circumstances, have held that either (1) single incidents never constitute a hostile work environment or (2) the single incident at issue in a particular case was not sufficiently severe to constitute a hostile work environment. See, e.g., Sedotto v. Borg-Warner Prot. Servs. Corp., 94 F. Supp. 2d 251 (D. Conn. 2000) (an "isolated remark by a co-worker does not meet the requirements of a hostile work environment"); Curtis v. Airborne Freight Corp., 87 F. Supp. 2d 234, 249 (S.D.N.Y. 2000) ("nor do plaintiffs allege a single severe incident of racial harassment sufficient in and of itself to alter the conditions of plaintiffs' employment"); Dunegan v. City of Council Grove, 77 F. Supp. 2d 1192, 1198-99 (D. Kan. 1999) (a single incident where a teenage co-worker made "two [unsuccessful] attempts to kiss the plaintiff"); Adenji v. Administration for Children Serv., 43 F. Supp. 2d 407, 422 (S.D.N.Y. 1999) ("A single incident of discriminatory comments is not sufficient to establish a hostile work environment."); Hanover v. Sheridan, No. C-3-96-122, 1999 WL 33117272, at *7 (S.D. Ohio Sept. 21, 1999) ("no reasonable jury could find that the kiss on the cheek incident was sufficiently severe that it caused the Plaintiff's work environment to be objectively hostile"); Jones v. Clinton, 990 F. Supp. 657, 675 (E.D. Ark. 1998) ("This is thus not one of those exceptional cases in which a single incident of sexual harassment, such as an assault, was deemed sufficient to state a claim of hostile work environment sexual harassment.").
H. The Spectrum of Workplace Harassment.
This section describes a variety of examples of what the courts have and have not found constituted a hostile work environment. It must be emphasized that this determination is contextual and fact-specific, since there is no bright line that can be drawn along the spectrum of workplace activities. These cases are arranged by circuit. The cases finding hostile environment harassment are listed first, followed by those cases not making such a finding. The reader should bear in mind that this is a sampling of recent published cases, and is not a comprehensive analysis of every harassment case filed under Section 1981 and Title VII. District of Columbia Circuit: Hostile Environment Present. There was hostile environment sexual harassment of an apprentice, by a supervisor, where the supervisor (1) "made lewd comments and gestures concerning Peyton's breasts on more than one occasion; (2) "engaged in a pattern of harassment, including threats communicated directly and through co-workers" after learning that the apprentice had filed an informal complaint; and (3) other supervisors "told [plaintiff] that she should drop her complaint." Peyton v. DiMario, 287 F.3d 1121, 1123 (D.C. Cir. 2002). Four incidents where the supervisor "chastised and mistreated" plaintiff, particularly for events that were not her fault, constituted hostile environment racial harassment when none of 29 plaintiff's white co-workers were singled out for such harassment. Villines v. United Bhd. of Carpenters and Joiners of Am., AFL-CIO, 999 F. Supp. 97, 104 (D.D.C. 1998). Although none of these incidents involved explicit racial epithets, their context indicated that the supervisor "would not have singled her out and subjected her to harassment" had plaintiff been white. Id. Three racist remarks by a supervisor to a black plaintiff were held sufficient to defeat defendants' summary judgment motion. Baxter v. Hartford Fire Ins. Co., 72 FEP Cases 901, 904 (D.D.C. 1996). The supervisor had (1) "referred to one of plaintiff's co-workers, a native of Trinidad, as 'a crazy island girl;'" (2) "allegedly stated that African-Americans like to eat watermelon;" and (3) "is alleged to have made derogatory remarks about an African-American employee's 'afro' hairstyle, asking whether 'bugs fly in [her] hair.'" Id. District of Columbia Circuit: No Hostile Environment. There was no hostile environment sexual harassment of an employee for alleged actions by his male co-workers, including tire-slashing, taunting, and several incidents where a co-worker "approached [plaintiff] at his work station and grabbed his crotch, made kissing gestures, and used a phrase describing oral sex," where the plaintiff could not show that these actions were anything but a workplace grudge match, and did not occur because of sex. Davis v. Coastal Int'l Sec., Inc., 275 F.3d 119 (D.C. Cir. 2002). Two allegedly racist incidents, one directed at another employee, and one "broad and unspecified" were held insufficient to defeat defendants' summary judgment motion. Jones v. Billington, 12 F. Supp. 2d 1, 12 (D.D.C. 1997), aff'd 1998 WL 389101 (D.C. Cir. June 30, 1998) (per curiam). Here, (1) the supervisor had issued to another employee a "counseling memorandum, which involves comments directed at another employee and not at the Plaintiff;" and (2) a nurse quoted plaintiff's remarks "that he had heard that 'racial and prejudicial remarks were being made against him,' to other individuals, though not in his presence." Id. There was no hostile environment racial harassment when the plaintiff was sharply criticized at staff meetings, since the supervisor also subjected non-minority employees to the same public criticisms. Lewis v. American Foreign Serv. Ass'n, 846 F. Supp. 71, 74 (D.D.C. 1993). Nor did two remarks - (1) that the supervisor indicated that "apartheid in South Africa had some favorable features" or (2) that the President joked that "AFSA [defendant] is a white supremacist organization and [plaintiff] fell for it hook, line and sinker" - constitute racial harassment, where the first statement was credibly denied, and the second statement was not congruent with the totality of the circumstances, since a majority of the employees at AFSA were women, and many were African-American. Id. at 76. First Circuit: Hostile Environment Present. There was hostile environment sexual harassment where the employee's supervisor initially (1) made "sexual comments, often accompanied by lascivious looks and offensive gestures;" (2) "also would contrive to 'bump into' Marrero in the narrow hallway between their work spaces, and on several occasions rubbed his body against hers as she used the photocopier 30 machine." Marrero v. Goya of P.R., Inc., 304 F.3d 7, 14 (1st Cir. 2002). After the employee complained to her supervisor about his harassment, the harassment resumed, "now accompanied by more 'vulgar' comments made 'with a gross tone." Id. The supervisor also began to harass her in petty, non-sexual ways. Id. at 14-15, 20 ("He criticized her work unfairly, sometimes embarrassing her by yelling at her in front of her co-workers."). The sexual harassment continued on an almost daily basis. "For example, Cardenas constantly referred to Marrero as 'the redhead' and frequently made comments such as 'the redhead is really hot,' 'the redhead is on fire,' or 'if this is what hell is like then the devil can take me with him.' Cardenas also made repeated comments about Marrero's lips, legs and clothing." Id. at 19. "At other times, Cardenas was more explicit: he once asked Marrero 'what are you going to do with the thing you have between your legs?" Id. Cardenas "also discussed Marrero's appearance with other employees. For example, he told Marrero's co-workers that she 'would be the model that would be used for any future female employees that Goya would hire.' Another time, Cardenas invited a male employee to assess what sort of underwear Marrero was wearing under her skirt." Id. Finally, on Halloween, "Cardenas told Marrero that he was going out to buy Halloween presents. He gave her 'a direct penetrating look with lust,' and said: 'I have a little present for you that you're never going to forget and if you don't do the things I tell you and order you to do I am going to fire you.' Marrero interpreted that comment as a sexual invitation, and a threat that if she did not submit, she would be fired." Id. at 15. There was hostile environment sexual harassment, by a co-worker, where the plaintiff was subjected to "disturbing and sometimes peculiar behavior," including (1) "grabbing her foot and massaging it against her will at an L.L. Bean pool party;" (2) "continually following her to work;" (3) "physically blocking her path and thereby forcing her to squeeze by him;" (4) "giving her gifts designed to let her know that he was watching her;" (5) dancing in the aisles near her;" (6) "waiting in the dark for her to come upon him, following her home, and even breaking into her house." Crowley v. L.L. Bean, Inc., 303 F.3d 387, 391 (1st Cir. 2002). Indeed, not until the plaintiff obtained a court protection order against the co-worker did the employer take decisive steps to stop the escalating harassment. Id. at 400. The First Circuit held that even harassment that took place off the worksite, presumably beyond the employer's control, could be used by the plaintiff as evidence, since "Courts, however, do permit evidence of non-workplace conduct to help determine the severity and pervasiveness of the hostility in the workplace as well as to establish that the conduct was motivated by gender." Id. at 409. Here, the co-worker's "intimidating behavior and hostile interactions with Crowley outside of work help explain why she was so frightened of [him] and why his constant presence around her at work created a hostile work environment." Id. at 409-10. First Circuit: No Hostile Environment. There was no hostile environment racial harassment where the supervisor called the plaintiff "boy" when this only occurred once, and that term "refers to a person's age and lacks racial and/or color connotations." Falero Santiago v. Stryker Corp., 10 F. Supp. 2d 93, 99 (D.P.R. 1998). This opinion seems to disregard the negative connotation of the term "boy" as applied to adult African-American males. 31 Second Circuit: Hostile Environment Present. There was hostile environment sexual harassment, by the plaintiff's manager, based on an escalating series of events: "From May 1993 to June 1994, Morabito engaged in a pattern of egregious conduct towards Jin [plaintiff] that included (a) making numerous crude sexual remarks to her, both in the office and by calling her at home; (b) offensively touching Jin's buttocks, breasts, and legs on numerous occasions at the office, including when she was making sales calls at her desk and walking clients to the elevator; (c) requiring Jin, beginning in the summer of 1993, to attend weekly Thursday night private meetings in his locked office during which he would threaten her with a baseball bat, kiss, lick, bite and fondle her, attempt to undress her, physically force her to unzip his pants and fondle him, push against her with his penis exposed, and ejaculate on her; and (d) repeatedly threatening to fire Jin if she did not accede to his sexual demands, as well as threatening her with physical harm. In February 1994, after months of submitting to the weekly sexual abuse out of fear of losing her job, Jin refused to attend another Thursday evening meeting with Morabito. Jin began working in the evenings and on weekends to avoid Morabito, but he continued to fondle and harass Jin when he saw her." Jin v. Metropolitan Life Ins. Co., 295 F.3d 335, 339 (2d Cir. 2002). The Second Circuit concluded that "requiring an employee to engage in unwanted sex acts is one of the most pernicious and oppressive forms of sexual harassment that can occur in the workplace." Id. at 344. Thus, this case was unlike Ellerth, since Ms. Jin suffered adverse employment actions when the supervisor withheld her paychecks: "[Ms.] Ellerth, unlike Jin, was able to resist her supervisor's advances, and the threat to deny her tangible job benefits in lieu of her submission was never carried out. In fact, she was promoted despite the alleged harassment and later quit." Id. at 347. Hence, "the key difference in this case is the claim that Jin was required to submit to sexual acts and that Morabito used that submission as a basis for granting her a job benefit (her continued employment). This is substantially different from the type of unfulfilled threat alleged in Ellerth, where no job benefit was granted or denied based on the plaintiff's acceptance or rejection of her supervisor's advances." Id. There was hostile environment sexual harassment, by a co-worker, based upon a series of incidents, where the co-worker (1) made a series of unwanted touchings; (2) "propositioned her to have sex with him and said, 'Mary, what do you say, it's going to be good;'" (3) exposed himself, on three occasions, to the plaintiff; and (4) taunted plaintiff with sexist names, including calling her a virgin. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 59-60 (2d Cir. 1998). Hostile environment racial harassment was present, based upon four incidents which occurred in plaintiff's presence, and eight other incidents that were relayed to plaintiff by his co-workers. Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997) (reversing grant of summary judgment and holding that district court erred in excluding the eight incidents which plaintiff did not directly experience). The four incidents which plaintiff experienced were (1) another officer told plaintiff "that he was dealing with a 'nigger bitch from Hartford who was beating the shit out of her kids;'" (2) during a football game, an officer asked "'why do they [black athletes] have to do that jungle dance every time they score a touchdown?'" (3) an officer 32 gave plaintiff "a copy of a racially offensive joke involving a play on the word nigger;" and (4) a lieutenant told plaintiff that he should not complain of racial harassment, since he "'had to understand the history of an all white male department and that at one time all the crimes in Avon were committed by blacks and that guys started to stereotype people.'" Id. at 108. The eight incidents which plaintiff did not directly experience, but learned of while on the workforce, were (1) during roll call, other officers were warned to "watch out for the nigger at [a gas station];" (2) a supervisor instructed officers "to target black and Hispanic people for traffic stops during the summer months;" (3) a racist joke was told during roll call, and when another officer objected, the supervisor responded that the plaintiff "was not present to be offended;" (4) an officer distributed "a written joke that involved criminal behavior and used [minority-group] names;" (5) an officer told a black employee "who was working the day shift instead of his usual night shift, 'I see you are working white man's hours;'" (6) during roll call, a supervisor stated "we have a nest of camel jockeys [persons of Middle-Eastern origin] over at 156 West Main;" (7) during a training session on using pepper spray, an officer stated "you have capsicum if you stop a car . . . and it is a car load of Puerto Ricans;" and (8) a dark skinned Italian officer "was referred to as the 'big nigger' by [other] officers." Id. at 108-09. Second Circuit: No Hostile Environment. There was no hostile environment sexual harassment present where the plaintiff alleged that her supervisor would not approve her vacation requests "if she did not have sex with him," that he offered to punch her time-card late at night so she could get overtime pay, and upon her return from vacation, he gave her a note that "if she had sex with him, [he] would give her money, make her a full time employee but permit her to work part-time and simply punch her card as if she were working full time, and take her on vacations and to a fitness club." Mormol v. Costco Wholesale Corp., 364 F.3d 54, 55 (2d Cir. 2004). The plaintiff promptly reported this conduct to the employer, who terminated the supervisor within a few weeks. Id. at 56. The court found that the few threats, none of which were implemented, were not sufficiently severe or pervasive; "nor does plaintiff claim that the incidents were physically threatening or humiliating, or that they interfered with her ability to do her job." Id. at 59. There was no hostile environment sexual harassment based on four incidents over a five year period, where the incidents were "infrequent and episodic," "were difficult for the employer to remedy because they were largely anonymous," and "were too few, too separate and time, and too mild . . . to create an abusive working environment." Alfano v. Costello, 294 F.3d 365, 380 (2d Cir. 2002). Here, the four "overtly sexual" incidents were (1) a Captain told the plaintiff, a female corrections officer, "that she should not eat carrots, bananas, hot dogs or ice cream on the job because she did so in a 'seductive' manner;" (2) plaintiff "discovered in her workplace mailbox a carrot and tow potatoes put there by someone who had the idea of arranging them to suggest mail genitalia;" (3) "a spurious notice was posted in the visiting room . . . purporting to be signed by [the] Superintendent, stating that 'carrots will not be allowed in the visiting area due to Sgt. Alfano's strong liking for them. If they are diced up, it will be okay. Supt.;'" and (4) "Alfano found in her mail box a hand-drawn cartoon depicting an officer under her supervision [] making vulgar sexual remarks." Id. at 370. 33 The Second Circuit upheld the district court's entry of post-verdict motion for judgment on plaintiff's hostile work environment claim, finding the following evidence insufficient as a matter of law: (1) "plaintiff testified that he did not have a good feeling about his work environment;" (2) a Hispanic co-employee "testified that he had a 'gut, personal feeling' that he did not belong in the office, and that 'an atmosphere of uneasiness existed;'" (3) "plaintiff found a file containing racist material, including a memorandum entitled 'Affirmative Action in Heaven,' on top of a wall locker near his office;" and (4) "plaintiff was consistently given menial tasks," including washing and putting gas in his boss's car. The court concluded that "generalized feelings of discomfort fell well short of the proof required to show a hostile work environment. Williams v. County of Westchester, 171 F.3d 98, 102 (2d Cir. 1999). There was no hostile environment racial harassment when (1) "one of [plaintiff's] supervisors made several discriminatory remarks about minorities" and (2) plaintiff alleged that her supervisors told her "that Coach [defendant] 'seeks to hire and promote people who have a 'Coach look' - the examples to whom her supervisors referred were young non-minority persons." Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998). The Second Circuit recognized that while these "alleged comments are despicable and offensive, they fail to constitute discriminatory behavior that is sufficiently severe or pervasive to cause a hostile environment." Id. at 713. Third Circuit: Hostile Environment Present. Hostile environment sexual harassment was present when the supervisors and fellow officers of a female police officer (1) "harassed her by making sexually derogatory comments about her hygiene during roll call, disturbed her while she was changing her in the drill room;" (2) referred to plaintiff "as 'the cunt' and placed a tampon and a copy of Hustler magazine in her squad car;" (3) "told plaintiff that upper management sent a woman to his unit to 'break his balls;'" (4) "officers placed a sanitary napkin with sergeant's stripes over the roll call podium and affixed a dildo either to the wall or the podium in the roll call room;" (5) plaintiff "was the subject of sexually explicit graffiti and drawings of herself at three locations on city property: the roll call room, the roll call bathroom, and the bathroom of the Masonic Temple, a building used by both employees and the public;" (6) the supervisor "reacted to the latest sexually explicit graffiti by rushing to see it and laughingly informing [plaintiff], in front of her colleagues, that 'it's really bad,' but he took no action to remove or prevent the appearance of the graffiti;" (7) when the plaintiff complained to her supervisor, "he replied that women in the private sector are protected against such harassment because they 'sleep with their bosses;'" (8) the supervisor told plaintiff "that he lost weight by 'having sex a few times a day,' and that women came to him 'when they're ready;'" and (9) when the plaintiff "was unable to locate her coffee mug, [supervisor] asked her if she wanted to drink out of his jock cup." Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 103-05 (3d Cir. 1999). Hostile environment racial harassment was present when co-workers and supervisors made "inherently racist remarks" and treated the two black plaintiffs more harshly than white 34 employees. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996). The white employees (1) referred to the plaintiffs as "another one," "one of them," "that one in there," and "all of you;" (2) falsely accused the plaintiffs of favoritism and incompetence; (3) regularly insulted other black employees with "don't touch anything" and "don't steal." Id. The supervisors (1) told one plaintiff that "if things were not resolved with [the other plaintiff], 'we're going to have to come up there and get rid of all of you;" (2) told one plaintiff "that he knew all about her and two other employees" when the "only factor the three shared in common was their race;" (3) after the plaintiffs filed a complaint, a supervisor "stated that 'the blacks are against the whites,' and that if anyone did not like it at Cort Furniture, they could leave." Id. The Third Circuit recognized that while several remarks were not overtly racist, "the use of 'code words' can, under circumstances such as we encounter here, violate Title VII," since such words "could be seen as conveying the message that members of a particular race are disfavored and that members of that race are, therefore, not full and equal members of the workplace." Id. at 1083. Hostile environment racial harassment was present, based upon incidents which the plaintiff experienced and incidents which other black employees had experienced. West v. Philadelphia Elec. Co., 45 F.3d 744, 749 (3d Cir. 1995). Examples of the former included "(1) racially harassing conversations; (2) racially derogatory postings on a bulletin board, (3) slurs and physical threats; (4) a large noose hanging in the workshop entranceway; (5) a picture of a Ku Klux Klan member posted in several locations throughout the workplace, and (6) a Confederate flag painted on the side of a co-worker's helmet." Id. at 749 n.1 (numbering added). Another example included a reference to then-Mayor Frank Rizzo, when a foreman "approached [plaintiff], slammed a stick on [his] workbench, remarking, 'This is how Rizzo kept 'city people' in line when he was Police Commissioner,'" where it was understood that 'city people' referred to African-Americans. Id. at 750. The Third Circuit further held that evidence of racial harassment experienced by other black employees but not witnessed by plaintiff was still admissible in plaintiff's case, since it was "evidence of notice of racial harassment given to PECO [defendant] by other employees. The company's notice of racial harassment is always, relevant, regardless of its source, because it bears upon the duty of the company to investigate and to remedy a hostile work environment." Id. at 756 n.10. The harassment experienced by others included (1) a supervisor "allegedly waved a noose in front of another African-American in the shop and remarked, 'You know what we use these for;'" and (2) a foreman "placed a photocopy of a figure on the side of his desk, facing Smith [a black employee]. West suggests that it was a black 'voodoo doll,' intended to harass Smith because he had argued with [the foreman] the day before." Id. at 751. Third Circuit: No Hostile Environment. Three isolated incidents did not constitute hostile environment racial harassment. Harley v. McCoach, 928 F. Supp. 533, 541 (E.D. Pa. 1996). The incidents were (1) "the electronic mail message in which she was addressed as 'Brown Sugar,'" (2) an allegation that she had heard from another worker that a supervisor "had referred to her using the word 'n*****';" and (3) "other workers teased her about an alleged tryst between her and [a white employee] by referring 35 to her as the Whitney Houston character in 'The Bodyguard,' a film that depicts an inter-racial love affair." Id. However, the court did find that plaintiff had shown extensive sexual harassment based on other, gender-related incidents. Id. at 539-40. Fourth Circuit: Hostile Environment Present. In 2002, a divided panel of the Fourth Circuit held that there was no hostile environment sexual harassment where the plaintiff could not show she would not have been exposed to the same numerous comments had she been male, i.e., the sexist comments occurred regardless of whether women were present in the workplace. Ocheltree v. Scollon Productions, Inc., 308 F.3d 351 (4th Cir. 2002), vacated on reh'g en banc (4th Cir. Dec. 16, 2002). The Fourth Circuit held its en banc oral argument on February 25, 2003. See D. Sontag, "The Power of the Fourth: How One Appellate Court is Quietly Moving America Ever Rightward," N.Y. Times Magazine, Mar. 9, 2003, at 38 (describing oral argument). The en banc court's decision, issued on July 18, 2003, rejected the panel's decision, authored by Judge Karen Williams, which found that, regardless of how egregious the facts, no hostile work environment could exist "because of" a female employee's gender - a necessary element to a sexual harassment claim - if the male employees had engaged in similarly offensive conduct before the female employee joined the workplace. Ocheltree v. Scollon Productions, Inc., 335 F.3d 325 (4th Cir. 2003) (en banc). As the en banc court detailed, the record contains the abundant evidence which justified the finding of liability. During her tenure in the production area of Scollon Productions, a South Carolina costume company, Ms. Ocheltree's male co-workers engaged in pervasive sexist banter and conduct, including constant discussions of their sexual exploits with their wives and girlfriends in extremely graphic and demeaning terms. They often used a female mannequin as a prop to simulate sexual acts in front of her, and they subjected her to sexually explicit jokes and graphic depictions, including a photograph of pierced male genitalia. Ms. Ocheltree complained repeatedly about the harassment to her co-workers, her supervisor, and during safety meetings, but to no avail. Her supervisor, actively participated in the harassment, and other co-workers took great delight in her embarrassment and distress. The employer had no written sexual harassment policy. Its employee handbook contained no mention of sexual harassment and prohibited only "loud talking, yelling, uncontrolled laughter, swearing, and verbal abuse of co-workers and supervisors." The handbook referenced an "Open Door Policy" that directed employees with a complaint to try to resolve it first with their immediate supervisor and then to meet with the company's Vice President and President, who had offices near the production shop, if their complaints were not resolved by the supervisor. The shop supervisor actively prevented Ocheltree from speaking with the President or Vice President; even when she did succeed in getting to their offices to register complaints, they "wouldn't give her the time of day," directing her to return to work. Indeed, at trial both officials admitted that they rebuffed Ocheltree's efforts to speak with them because they believed that whatever she wanted to talk about "was not important." 36 The en banc court held that even though the sexual atmosphere predated Ocheltree's arrival, the remarks and conduct escalated significantly after her arrival, particularly after she complained during a shop meeting. Moreover, several of the acts were directed specifically towards her. In contrast, the remarks and conduct were never directed towards her male co-workers, even if they had the incidental effect of embarrassing some of them. Ocheltree, 335 F.3d at 331-33. However, the en banc court also upheld the panel's reversal of the jury's award of punitive damages. Id. at 336; see generally D.S. Katz & A.R. Kabat, "Sex Harassment Suit: No Windfall After All," Nat'l L.J., Nov. 10, 2003, at 30. There was hostile environment sexual harassment where the employee was constantly "barraged with comments of a sexual nature." Anderson v. G.D.C., Inc., 281 F.3d 452, 456 (4th Cir. 2002). In particular, the plaintiff's supervisor was the "worst perpetrator," since he "made vulgar comments regarding Anderson's breasts and buttocks on a daily basis and who repeatedly stated that he 'heard black women had the best p***y' and that 'you hadn't f***ed until you have been with a black woman.' Cooper also told Anderson that if he ever caught her driving on a certain road, he 'would f*** [her] in the a**,' and that 'all [Anderson] needed was a good f*** and [she] wouldn't be so mean.' Twice, Cooper touched Anderson's hand in a suggestive manner when she handed him her paper-work. On one occasion, Cooper paged Anderson and inputted a telephone sex line as the response number. Anderson called the number believing it to be her son's day-care; when she returned to the dispatch trailer, she found Cooper and several drivers laughing at her." Id. Even after Anderson complained about this harassment, "Cooper then responded to Anderson, telling her that she 'might as well get used to it' and that '[t]hat was the way of G.D.C.'" Id. Subsequently, "Anderson asked Cooper for assistance with a question regarding her paperwork. In the guise of assisting her, Cooper came up behind Anderson and pressed his penis into her buttocks (the touching incident). Anderson whirled around and told Cooper that she would 'cut his f***ing throat if he ever did it again.'" Id. The co-workers also made sexual remarks to Ms. Anderson: "Male G.D.C. drivers made numerous comments regarding Anderson's buttocks and stated within Anderson's hearing that they 'would like to f*** [her] in the a**.' Male G.D.C. drivers also commented that they would like to perform oral sex on Anderson. Further, they noted that Anderson wore red lipstick and stated that they 'would like to see the red ring around their d***' and that they bet Anderson 'could suck a good d***.' As much as possible, Anderson tried to avoid using the employee restroom located in the dispatch trailer because other drivers would make off-color comments when she did so. Once while Anderson was in the restroom, another driver commented, loudly enough for Anderson to hear, that he 'would like to take a bath in [her] hot p***.'" Id. A series of remarks made by a shop foreman constituted hostile environment racial harassment. Brumback v. Callas Contractors, Inc., 913 F. Supp. 929, 939-40 (D. Md. 1995). These included (1) plaintiff and the foreman "were alone in the diesel shop, that Hammond [foreman] lit a torch, soot came off the torch, and in response, Hammond said something akin to 'Look at all them little nigger babies flying around through the air there;'" (2) after plaintiff told 37 the foreman that he had no plans for New Year's Eve, the foreman suggested that plaintiff "go to Jonathan Street and 'kill off all the niggers so we white people could have more;'" (3) the plaintiff overheard the foreman telling the manager "something along the lines of 'getting tired of that nigger in that shop doing nothing. Either you do something about that nigger or I'm going to bust him upside his head;'" (4) the foreman also described the plaintiff to the manager "as being 'a no good nigger and they was going to find a way to get rid of' him;" (5) the foreman, "in reference to a cut off saw, had said that 'that looks like the work of that dumb nigger back in the shop;'" and (6) the foreman told the plaintiff that "he was a dumb fucking nigger, he couldn't put a God damn bicycle together if they had directions there for him." Id. at 935-36. The court concluded that these were not isolated incidents, since "where one individual continues to verbally abuse an employee over the course of several months, this Court is at a loss to call these incidents 'isolated.'" Id. at 939. The court further noted the significance of the racial epithet at issue: "Nor is repeated use of the ancient epithet - 'nigger' - trivial as a matter of law. Id. Fourth Circuit: No Hostile Environment. A single incident, involving the "display of a poster with a picture of a gorilla and the motto, 'I wouldn't mind being a NOBODY if I could only get A LITTLE RECOGNITION once in a while,'" was held not to constitute hostile environment racial harassment, where the message was a "pun on the name of the Recognition Branch [of the Navy]" and there is no evidence that the owner of the poster or any other supervisor "had actual or constructive knowledge that the poster was potentially offensive to African-American employees." Carter v. Ball, 33 F.3d 450, 460-61 (4th Cir. 1994). Fifth Circuit: Hostile Environment Present. There was hostile environment sexual harassment where the plaintiff, who previously had a consensual sexual relationship with her supervisor, suffered from a hostile work environment after the termination of their relationship. Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642 (5th Cir. 2002). Although the exact nature of the incidents is not specified, the "evidence supports a finding that Richardson's actions interfered with Green's work performance, that he reprimanded and demoted her, and that he cursed at and humiliated her." Id. at 656. Critically, "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. There was hostile environment sexual harassment where plaintiff's two supervisors harassed her. Wyatt v. Hunt Plywood Co., 297 F.3d 405 (5th Cir. 2002). The first-level supervisor, Thompson, started harassing the plaintiff almost from the first day: he "commenced harassing her sexually, referring to her in vulgar terms and continually asking her to have sex with him." Id. at 407. After Ms. Wyatt complained to her second-level supervisor (Gorum), the harassment by Thompson persisted. Then, "Gorum himself eventually subjected Wyatt to sexual advances and harassment." Id. Finally, "Thompson's harassment of Wyatt reached its zenith . . . 38 when he sneaked up behind her and pulled down her sweat pants while she was actively working on the line, and in the plain view of other employees." Id. Even after Ms. Wyatt reported this to Gorum, "in an effort to down-play Thompson's actions, Gorum declined to indicate in the [incident] report that Thompson had pulled Wyatt's pants down." Id. at 407-08. There was hostile environment harassment where the supervisor (1) "made inappropriate jokes both to and about [plaintiff];" (2) "continually made sexual innuendos" to [plaintiff];" (3) "once grabbed her buttocks as well as touched her in other ways on several other occasions;" and (4) "began following her through the store calling her a 'homewrecker' and saying that she was 'homeless' in front of other employees, vendors, and customers," referring to her extramarital affair with another supervisor. Watts v. Kroger, 170 F.3d 505, 507-08 (5th Cir. 1999). There was hostile environment sexual harassment of a police officer by her supervisors, based on a series of incidents, where the sergeants (1) "announced in front of over one hundred officers and police cadets that Sharp 'needs to be in a wet T-shirt contest;'" (2) "often referred to Sharp's breasts as 'headlights' and, on one occasion, as Sharp walked toward him and several other officers, he yelled, 'I see those headlights coming!'" (3) "When Sharp would bend over to pick up equipment, Bice, while swiveling his hips, would shout out, 'hold that position, gal!'" (4) "When Sharp requested time off, Bice often joked that he had keys to a motel room where they could go to 'discuss the matter;'" (5) "He often commented that the couch in his office folded out into a bed, and invited her to come in and close the door;" (6) "He once told Sharp that he would approve her vacation request if she brought back pictures of herself on a nude beach;" (7) "during roll call, Hankins walked up to Sharp and unzipped his pants, placing his crotch inches from her face [and] capped off the 'joke' by making a reference to oral sex;" (8) "When Sharp asked job-related questions, on several occasions Hankins grabbed his crotch and shook it, inviting her to 'chew on this.'" Sharp v. City of Houston, 164 F.3d 923, 926-27 (5th Cir. 1999). There was hostile environment racial harassment, by a black elected official against a white public employee, where the official (1) "stated that 'blacks had suffered for two hundred years, and now it was the whites' turn;'" (2) demoted experienced whites, forcing them to work under less experienced blacks; (3) "refused to allow whites who had been injured on the job to perform 'light duty' - as he did for blacks - but insisted that they perform heavy duty or stay home;" (4) "allowed black employees to take frequent breaks on the job, but chastised whites who did the same;" and (5) "tolerated and helped to foster an atmosphere in which whites were called 'honkeys' and were made the subject of ridicule and harassment on account of race." Huckabay v. Moore, 142 F.3d 233, 237 (5th Cir. 1998). The court recognized yet other incidents, which allowed the plaintiff to plead under the continuing violation theory. Id. at 240. Fifth Circuit: No Hostile Environment. There was no hostile environment sexual harassment where plaintiff's supervisor's acts, while "boorish and offensive," were not severe, did not physically threaten plaintiff, and did not "interfere unreasonably with a reasonable person's work performance." Shepherd v. 39 Comptroller of Pub. Accounts of State of Tex., 168 F.3d 871, 874 (5th Cir. 1999). The supervisor (1) "stood in front of [plaintiff's] desk and remarked 'your elbows are the same color as your nipples;'" (2) "remarked once 'you have big thighs' while he simulated looking under her dress;" (3) "stood over her desk on several occasions and attempted to look down her clothing;" (4) "on two occasions, when [plaintiff] looked for a seat after coming in late to an office meeting, [he] patted his lap and remarked 'here's your seat.'" Id. at 872. There was no hostile environment sexual harassment when the plaintiff's supervisor sent anonymous notes and postcards of a sexist nature, as well as anonymous prank calls, since these incidents occurred infrequently, did not occur in the workplace, were not publicly displayed or manifested, did not contain threatening statements, and "would not interfere unreasonably with a reasonable person's work performance." Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269-70 (5th Cir. 1998). There was no hostile environment harassment, based on three same-sex incidents that were "crude but did not create a hostile environment." Pfullman v. Texas Dep't of Transp., 24 F. Supp. 2d 707, 712 (W.D. Tex. 1998). Here, (1) a supervisor "sat on Plaintiff's lap and briefly 'rocked around,' commenting 'that sure feels good right here;'" (2) another supervisor "made fellatio insinuations to [plaintiff] while [plaintiff] was eating a sausage;" and (3) "In connection with fit-testing hazardous chemical respirators [a third supervisor] told [plaintiff's co-worker] to 'bend over and he would 'fit test' [co-worker] right there.'" Id. at 710-11. There was no hostile environment racial harassment when plaintiff could only allege a single racial epithet. Nguyen v. Benson Toyota Co., 73 FEP Cases 1321, 1324 (E.D. La. 1997). Here, the Vietnamese-American plaintiff was called a "rice-eating gook" by a co-worker during an argument. Id. at 1323. The court held that: "This is exactly the kind of 'mere utterance' that sh