Enforcement Guidance on Harassment in the Workplace

¹ 477 U.S. 57 (1986).

² See EEOC, Enforcement and Litigation Statistics, https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0 (last visited Apr. 25, 2024).

³ See, e.g., EEOC v. Sandia Transp., LLC, No. 1:23-cv-00274 (D.N.M. consent decree entered Mar. 14, 2024) (settlement on behalf of four women subjected to sex harassment that included the owner repeatedly using various epithets and stating he hated “f*ckin’ dealing with women”); EEOC v. Schuff Steel Co., No. 2:22-cv-01653 (D. Ariz. consent decree entered Dec. 19, 2023) (settlement on behalf of a class of aggrieved Black and Latino employees alleging race- and national-origin-based harassment, including use of the N-word; calling Latino employees “beaners;” and ridiculing Latino employees who did not speak English well); EEOC v. UFP Ranson, LLC, No. 3:21-CV-00149 (N.D.W. Va. consent decree entered Sept. 28, 2023) (settlement of lawsuit alleging harassment based on race and religion on behalf of a Black Muslim worker who was repeatedly called race- and religion-based epithets; told that members of the Ku Klux Klan worked at the facility; had objects thrown at him while he was praying; was physically intimidated and shoulder-checked; and was required to perform tasks by means that were unnecessarily onerous); EEOC v. Chipotle Servs., LLC, No. 2:22-cv-00279 (W.D. Wash. consent decree entered Sept. 14, 2023) (settlement on behalf of three female employees, including a teenager, subjected to a sexually hostile work environment that included touching, unwelcome sexual comments, and requests for sex); EEOC v. T.M.F Mooresville, LLC, No. 5:21-cv-00128 (W.D.N.C. consent decree entered Aug. 24, 2022) (settlement on behalf of a class of White housekeeping employees allegedly subjected to harassment based on race, which included use of racially derogatory terms such as “white trash”); EEOC v. CCC Grp., 1:20-cv-00610 (N.D.N.Y. consent decree entered Aug. 9, 2021) (settlement on behalf of seven Black employees at an industrial construction site allegedly subjected to repeated racist slurs, displays of nooses, and comments about lynchings by White supervisors and coworkers); EEOC v. Nabors Corp. Servs., Inc., No. 5:16-cv-00758 (W.D. Tex. consent decree entered Nov. 12, 2019) (settlement on behalf of nine Black employees and one White employee based on alleged racial harassment, which included employees being addressed as “n****r” and being referred to as the “colored crew,” and retaliation, among other allegations).

⁴ 42 U.S.C. § 2000e-5 (Title VII); 29 U.S.C. § 626 (Age Discrimination in Employment Act (ADEA)); 42 U.S.C. § 12117(a) (Americans with Disabilities Act (ADA)); 42 U.S.C. § 2000ff-6(a) (Genetic Information Nondiscrimination Act (GINA)). This guidance addresses harassment claims under provisions of the federal EEO laws that prohibit discrimination by employers, including section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1) (private sector and state and local government) and section 717 of Title VII, 42 U.S.C. § 2000e-16(a) (federal agencies). It does not address potential claims of unlawful harassment under provisions that prohibit discrimination by other entities covered under Title VII, such as employment agencies and labor organizations, including sections 703(b) and 703(c) of Title VII, 42 U.S.C. §§ 2000e-2(b) and 2000e-2(c). See, e.g., Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73, 84-85 (1st Cir. 2007) (upholding a jury verdict finding a union liable for sexual harassment that occurred during a union-sponsored bus trip).

The standards discussed here under EEOC-enforced laws will not necessarily apply to claims alleging unlawful harassment under other federal laws or under state or local laws.

⁵ We note, for instance, that a discussion of the interaction of EEO laws with the National Labor Relations Act (NLRA), 29 U.S.C. § 157 et seq., is beyond the scope of this guidance, which is focused only on statutes enforced by the Commission. The National Labor Relations Board (NLRB) has the sole authority to enforce the NLRA. The EEOC consults with the NLRB’s Office of General Counsel as needed to help ensure workable application of the statutory protections for both workers’ civil rights and the NLRA.

⁶ See 29 C.F.R. § 1695.2(c)(7)(i).

⁷ For further information, see the relevant sections of EEOC’s Compliance Manual Section on Religious Discrimination. EEOC, Compliance Manual Section 12: Religious Discrimination, No. 915.063, §§ 12-I.C, 12-III.D, and Addendum (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.

⁸ See section VI, infra (providing links to EEOC harassment-related resources).

⁹ See, e.g., Laurent-Workman v. Wormuth, 54 F.4th 201, 212 (4th Cir. 2022) (holding that the plaintiff established at least a plausible claim of race-based harassment where a White coworker’s statements that she “could not understand African Americans because they cannot speak properly communicated racial enmity by summoning an odious trope about African American speech patterns”); Gates v. Bd. of Educ., 916 F.3d 631, 633-34, 640-41 (7th Cir. 2019) (concluding that a reasonable jury could find that the plaintiff was subjected to a racially hostile work environment based on three incidents with his supervisor, specifically that his supervisor made a joke in which he referred to the plaintiff as a “sh*t-sniffing n****r,” threatened to write up the plaintiff’s “black ass,” and stated he was “tired of you people” and again referred to the plaintiff as “n****r”); Ellis v. Houston, 742 F.3d 307, 314, 320-21 (8th Cir. 2014) (reversing a grant of summary judgment for the defendants on the plaintiffs’ racial harassment claims under 42 U.S.C. §§ 1981 and 1983 where there was evidence of a widespread pattern of racial harassment that included racial stereotyping, such as referring to the African American plaintiffs as “the gang” or “the back of the bus” and addressing them with comments about the “hood” or fried chicken and watermelon); Boone v. Old Colony Young Men’s Christian Ass’n, No. 13-13131, 2015 WL 7253676, at *3 (D. Mass. Nov. 17, 2015) (concluding that a reasonable jury could find that a reference to a pornographic movie with a title based on racial stereotypes constituted race-based harassment); Chambers v. Walmart Stores, Inc., No. 1:14CV996, 2015 WL 4479100, at *1, *3 (M.D.N.C. July 22, 2015) (recommending denial of a motion to dismiss a racial harassment claim alleging that a manager used racial slurs and negative racial stereotypes, such as referring to Black people as “Blackie” and using the term “ghetto” to describe the appearance of the store), report and recommendation adopted, 2015 WL 5147056 (Sept, 1, 2015).

¹⁰ See EEOC, Compliance Manual Section 15: Race & Color Discrimination § 15-II (2006), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination#II; see also, e.g., Ellis, 742 F.3d at 314 (noting “[o]ffensive comments . . . about the qualities of black hair and black hairstyles” when describing a pattern of race-based harassment); Fuller v. Fiber Glass Sys., LP, 618 F.3d 858, 864 (8th Cir. 2010) (concluding that the evidence was sufficient to establish that the plaintiff’s work environment was hostile where, among other things, the plaintiff alleged that she was admonished for answering the phones because “customers weren’t used to hearing a black voice”).

¹¹ See, e.g., § II.B.3, infra (explaining that harassment based on stereotypes about a protected group need not be motivated by animus or hostility toward that group).

¹² See EEOC, Compliance Manual Section 15: Race & Color Discrimination § 15-III (2006), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination#III; see also, e.g., EEOC v. Pioneer Hotel, Inc., No. 2:11-CV-01588, 2013 WL 3716447, at *3 (D. Nev. July 15, 2013) (denying a motion to dismiss a claim of harassment against a class of Latino and/or dark-skinned employees based on national origin and/or skin color); Wiltz v. Christus Hosp. St. Mary, No. 1:09-CV-925, 2011 WL 1576932, at *8 (E.D. Tex. Mar. 10, 2011) (stating harassment is based on color when the complained-of conduct has a color-related character or purpose and collecting cases supporting the same); Brack v. Shoney’s, Inc., 249 F. Supp. 2d 938, 953-55 (W.D. Tenn. 2003) (holding there was sufficient evidence of color-based harassment to survive the employer’s summary judgment motion where the plaintiff’s supervisor called him “little black sheep” and expressed a preference for a “fair skinned” manager, among other things); cf. Etienne v. Spanish Lake Truck & Casino Plaza, LLC, 778 F.3d 473, 477 (5th Cir. 2015) (vacating summary judgment for the employer regarding its failure to promote the plaintiff to a managerial position where the plaintiff offered evidence that she was qualified for the position and provided direct evidence that she was not considered for the position because of her skin color); Arrocha v. City Univ. of N.Y., No. CV-02-1868, 2004 WL 594981, at *6 (E.D.N.Y. Feb. 9, 2004) (concluding that the plaintiff had alleged color, not race, discrimination where the plaintiff claimed light-skinned Hispanics were favored over dark-skinned Hispanics); Walker v. Sec’y of the Treasury, 713 F. Supp. 403, 405-08 (N.D. Ga. 1989) (concluding that the plaintiff stated a claim for relief under Title VII where she alleged that her supervisor, a Black woman with dark skin, terminated the plaintiff, also a Black woman, because of her light skin color), aff’d without opinion, 953 F.2d 650 (11th Cir. 1992).

¹³ This example is adapted from the facts in EEOC v. Rugo Stone, LLC, No. 1:11-cv-915 (E.D. Va. consent decree entered Mar. 6, 2012).

¹⁴ See, e.g., Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (concluding that the plaintiff could establish that he was harassed based on his national origin, Korean, where his supervisor allegedly subjected Korean workers to abuse based on their failure to “live up” to the stereotype that Korean workers are “better than the rest”).

¹⁵ See 29 C.F.R. § 1606.1 (“The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity . . . because an individual has the physical, cultural or linguistic characteristics of a national origin group.”); EEOC, Enforcement Guidance on National Origin Discrimination § II.B (2016)https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm#_Toc451518801 (stating that national origin discrimination includes discrimination based on physical, linguistic, or cultural traits); see also, e.g., Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 799-801 (8th Cir. 2003) (holding that evidence of frequent harassment, including taunts about a Hispanic employee’s accent and statements that “Hispanics should be cleaning” and that “Hispanics are ‘stupid,’” was sufficient to show that an employee was subjected to pervasive harassment that created a hostile work environment); Gonzales v. Eagle Leasing Co., No. 3:13-CV-1565, 2015 WL 4886489, at *5 (D. Conn. Aug. 14, 2015) (holding that a reasonable jury could find that the plaintiff was subjected to a hostile work environment based on race, national origin, and ethnicity where the harassment included derogatory comments about traditional Cuban food); Garcia v. Garland Indep. Sch. Dist., No. 3:11-CV-502, 2013 WL 5299264, at *4-6 (N.D. Tex. Sept. 20, 2013) (declining to grant summary judgment where a hostile work environment claim included an allegation that the defendant’s employees mocked the plaintiff’s mispronunciation of words and ridiculed her for lack of English fluency); Syed v. YWCA of Hanover, 906 F. Supp. 2d 345, 355-56 (M.D. Pa. 2012) (holding that a fact finder could infer that harassment was based on race or national origin where the plaintiff’s supervisor criticized her “awful” Pakistani-styled dress, called her a “brown b*tch,” suggested she did not know how to open a door due to her national origin, and told her she needed to learn to drive because “we don’t ride camel[s] here”).

¹⁶ Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). This term is broad and is not limited to traditional or organized religions. However, social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII. EEOC, Compliance Manual Section 12: Religious Discrimination, No. 915.063, § 12-I.A.1 (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_9593682596821610748647076.

¹⁷ See EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 613-17 (9th Cir. 1988) (applying Title VII to religious discrimination claim based on atheism); Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 143-44 (5th Cir. 1975) (same); Mathis v. Christian Heating & Air Conditioning, Inc., 158 F. Supp. 3d 317, 329 (“Under Title VII, atheists are entitled to the exact same protection as members of other religions.”) (E.D. Pa. 2016); see also Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003) (noting that firing someone for being an atheist violates Title VII’s prohibition against religious discrimination); Scott v. Montgomery Cnty. Sch. Bd., 963 F. Supp. 2d 544, 559 n.11 (W.D. Va. 2013) (“Title VII’s definition of ‘religion’ includes ‘all aspects of religious observance and practice, as well as belief . . . .’ and . . . protects persons who are not members of organized religious groups as well as atheists.” (internal citation omitted)).

¹⁸ See, e.g., Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443-44 (5th Cir. 2011) (holding that a fact finder could conclude that the plaintiff was subjected to unlawful religious harassment, which included disparaging comments about his religious beliefs); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 314 (4th Cir. 2008) (reversing summary judgment for the employer on a religious harassment claim that included evidence that the employee was harassed, in part, because of his religious headwear).

¹⁹ See, e.g., Sunbelt Rentals, Inc., 521 F.3d at 316-18 (reversing summary judgment for the employer where there was evidence that a Muslim employee was subjected to persistent religious harassment, which included repeatedly referring to the employee as “Taliban” or “towel head,” challenging the employee’s allegiance to the United States, and stereotyping Muslims as terrorists).

²⁰ See, e.g., Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 279 (3d Cir. 2001) (holding that a reasonable jury could find that hostility directed toward an Orthodox Jewish college professor regarding her insistence that she not work during the Sabbath constituted harassment based on religion); Ibraheem v. Wackenhut Servs., Inc., 29 F. Supp. 3d 196, 203, 214 (E.D.N.Y. 2014) (holding that a reasonable jury could conclude that the plaintiff was subjected to unlawful religious harassment after he received an exception to the employer’s no-beard policy as a reasonable accommodation when, for example, supervisors asked the plaintiff to see the letter documenting his religion and disciplined him for various infractions shortly thereafter).

For more information on religious discrimination, see https://www.eeoc.gov/religious-discrimination (last visited Apr. 24, 2024) (discussing religious discrimination and providing links to other EEOC resources).

²¹ For a detailed discussion and additional examples of Title VII’s prohibition against harassment because of religion, see section 12-III.B of EEOC’s Compliance Manual Section on Religious Discrimination. EEOC, Compliance Manual Section 12: Religious Discrimination, No. 915.063, §12-III.B (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_39980494324601610748877628.

²² See Winspear v. Cmty. Dev., Inc., 574 F.3d 604, 608 (8th Cir. 2009) (remanding hostile work environment claim to the district court in order to address summary judgment motion in the first instance where the district court had noted that the plaintiff “‘may have raised a genuine issue of material fact as to whether [] repeated comments about [the plaintiff’s] brother suffering in Hell and . . . needing to find God constituted a hostile work environment’” but also had erroneously analyzed the hostile work environment claim as a constructive discharge claim).

²³ See EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 620-21 (9th Cir. 1988) (“Protecting an employee’s right to be free from forced observance of the religion of his employer is at the heart of Title VII’s prohibition against religious discrimination.”); see also Garcimonde-Fisher v. Area203 Mktg., LLC, 105 F. Supp. 3d 825, 840 (E.D. Tenn. 2015) (“Title VII forbids employers from forcing employees to make [the] choice [“My religion or my job?”] whether overtly or covertly. Hostile work environment claims prevent employers from creating conditions that are inhospitable to any but those who share their beliefs.”); EEOC v. United Health Programs of Am., Inc., No. 1:14-cv-3673, 2020 WL 1083771, at *5-11 (E.D.N.Y. Mar. 6, 2020) (affirming jury verdict concerning a hostile work environment based on religion where employees were forced to participate in “new age” religious activities at work against their wishes).

²⁴ See Tillery v. ATSI, Inc., 242 F. Supp. 2d 1051, 1058 (N.D. Ala. 2003) (summary judgment to employer denied where the owner “repeatedly subjected plaintiff to lectures about her prospects for salvation during working hours, made highly personal inquiries into her private life (e.g., the legitimacy of her children, and whether a prior marriage had been terminated by divorce versus the doctrine of annulment sanctioned by the Catholic Church), and ‘strongly suggested [she] talk with God’”); see also EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 837 (S.D. Ind. 2002) (discussing how employers’ “expectations” regarding alleged voluntary participation in religious activities can amount to coercion).

²⁵ Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (stating that sex-based harassment includes “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” (alteration in original) (quoting 29 C.F.R. § 1604.11(a))); see also, e.g., Hatley v. Hilton Hotels Corp., 308 F.3d 473, 475 (5th Cir. 2002) (holding that the district court erred in granting judgment as a matter of law for the employer where sex-based harassment consisted of repeated touching, vulgar comments, propositions, and physical aggression).

²⁶ Harassment based on sex is often referred to interchangeably as sex-based harassment or sexual harassment, without regard to whether the harassment at issue involves what this document refers to as “sexual conduct.”

²⁷ See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 815 (6th Cir. 2013) (explaining that non-sexual conduct can be based on sex and therefore contribute to a sex-based hostile work environment); Rosario v. Dep’t of the Army, 607 F.3d 241, 248 (1st Cir. 2010) (stating that conduct that does not have sexual connotations can contribute to a sex-based hostile work environment).

²⁸ See infra Example 35: Comparative Evidence Gives Rise to Inference that Harassment Is Based on a Protected Characteristic (providing an example of facially sex-neutral offensive conduct motivated by sex, such as bullying directed toward employees of one sex).

²⁹ This document does not analyze application of the Pregnant Workers Fairness Act to harassment based on an employee’s request for, or receipt of, an accommodation.

³⁰ See Walsh v. Nat’l Comput. Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003) (upholding jury verdict finding the plaintiff was subjected to a hostile work environment based on pregnancy where the plaintiff’s supervisor made numerous derogatory comments about her pregnancy and required the plaintiff to provide advance notice and documentation of doctor’s appointments, even though the plaintiff’s coworkers were not required to provide such information for appointments); Fugarino v. Milling, Benson, Woodward LLP, No. 21-594, 2022 WL 6743191, at *3 (E.D. La. Oct. 11, 2022) (denying summary judgment to the employer on the plaintiff’s claim of pregnancy-based harassment alleging, among other things, that she was subjected to comments about the size of her breasts, the “shape and curves of her body” as an Italian pregnant woman, and how her “‘milk’ would come in” and make her breasts even larger); Young v. AlaTrade Foods, LLC, 2:18-CV-00455, 2019 WL 4245688, at *2 (N.D. Ala. Sept. 6, 2019) (denying summary judgment to the employer on the plaintiff’s sexual harassment claim alleging that she was subjected to conduct that included comments from the plaintiff’s supervisor who, upon learning she was pregnant, told her “he was upset because he did not want anyone else to have her,” “made sexual hand gestures with his smock in front of her and told her that she had ‘nice breasts’ that were ‘a nice size for sucking,’” said she had a “fine sexy ass,” touched her, whispered in her ear, touched/grazed her buttocks, and showed her pictures of himself partially undressed).

³¹ 42 U.S.C. § 2000e(k) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions ....”).

³² See Hicks v. City of Tuscaloosa, 870 F.3d 1253, 1260 (11th Cir. 2017) (concluding that Title VII prohibits discrimination based on breastfeeding); EEOC v. Hous. Funding II, Ltd., 717 F.3d 425, 430 (5th Cir. 2013) (holding that Title VII prohibits discharging an employee because she is lactating).

³³ See EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues § I.A.3.d (2015), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues#IA3d (stating that Title VII prohibits discrimination against a woman because she uses contraceptives and citing cases).

³⁴ See id. § I.A.4.c, https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues#IA4c; see also, e.g., Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (holding that Title VII prohibits discrimination against a female employee because she has had an abortion); Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (same). Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion. Velez v. Novartis Pharms. Corp., 244 F.R.D. 243, 267 (S.D.N.Y. 2007) (concluding that a declaration by a female employee that she was encouraged by a manager to get an abortion was anecdotal evidence supporting a class claim of pregnancy discrimination).

³⁵ See Zuckerman v. GW Acquisition LLC, No. 20-CV-8742, 2021 WL 4267815, at *2 (S.D.N.Y. Sept. 20, 2021) (denying the defendant’s motion for summary judgment where two owners made a series of offensive comments about the plaintiff’s decision to breastfeed and to pump breastmilk at the office, including one owner asking “‘if he could ‘have some milk in [his] coffee’ and whether [the plaintiff] could ‘just squirt it in there,’” and another owner “frequently yell[ing] ‘pump station’ or ‘pumper’ when he would pass the designated pumping area in the office”).

³⁶ See Bostock v. Clayton Cnty., 590 U.S. 644 (2020); Copeland v. Ga. Dep’t of Corr., ___ F.4th ___, No. 22-13073, 2024 WL 1316677, at *5 (11th Cir. Mar. 28, 2024) (citing Bostock and stating that “discrimination against transgender individuals like [the plaintiff] is discrimination ‘because of sex’”); Sch. of the Ozarks, Inc. v. Biden, 41 F.4th 992, 995 (8th Cir. 2022) (“Bostock held that the statute’s prohibition on employment discrimination ‘because of sex’ encompasses discrimination on the basis of sexual orientation and gender identity.”); Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 598 (5th Cir. 2021) (“Under Bostock v. Clayton County, discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination under Title VII.”).

In its decisions regarding federal employees’ EEO claims, the Commission has concluded that discrimination on the basis of sexual orientation or gender identity violates Title VII. See, e.g., Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756, at *10-13 (Apr. 1, 2015) (finding that harassment violated section 717 of Title VII, which prohibits federal agencies from engaging in employment discrimination on the basis of sex, because the harassment was based on the plaintiff’s gender identity); Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 15, 2015) (concluding as a matter of law that sexual orientation is inherently “a ‘sex-based consideration,’” and that an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under section 717 of Title VII).

³⁷ Bostock itself concerned allegations of discriminatory discharge, but the Supreme Court’s reasoning in the decision about the nature of discrimination based on sex logically extends to claims of harassment that change the terms, conditions, or privileges of employment under section 703(a)(1) of Title VII. As a result, courts have readily found post-Bostock that claims of harassment based on one’s sexual orientation or gender identity are cognizable under Title VII. See, e.g., Copeland, 2024 WL 1316677, at *5 (citing Bostock and stating that “a transgender man who was harassed about his gender after coming out at work” was subjected to ““discrimination ‘because of sex’”); Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 121 (4th Cir. 2021) (“[T]he Supreme Court’s holding in Bostock makes clear that a plaintiff may prove that same-sex harassment is based on sex where the plaintiff was perceived as not conforming to traditional male stereotypes.”); Doe v. City of Det., 3 F.4th 294, 300 n.1 (6th Cir. 2021) (stating that harassment on the basis of transgender identity is sex discrimination under Title VII because “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex”); Simmons v. Starved Rock Casework LLC, No. 20-CV-1684, 2021 WL 5359017, at *2 (E.D. Wis. Nov. 17, 2021) (finding that the plaintiff had stated a claim for relief by alleging a hostile work environment based on his heterosexual status); Boney v. Tex. A&M Univ., No. 4:19-CV-2594, 2021 WL 3640714, at *4 n.5 (S.D. Tex. July 19, 2021) (“The Fifth Circuit has construed the Supreme Court’s recent decision in Bostock as holding that Title VII prohibits workplace discrimination based on homosexuality[; therefore] a plaintiff may establish a Title VII violation by showing a hostile work environment based on sexual orientation discrimination.” (citing Newbury v. City of Windcrest, 991 F.3d 672, 676-77 (5th Cir. 2021))); EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 571 (6th Cir. 2018) (Title VII covers both failure to conform to sex stereotypes and transgender or transitioning status), aff’d sub nom. Bostock v. Clayton Cnty., 590 U.S. 644 (2020); Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 129 (E.D. Pa. 2020) (“It naturally follows [from Bostock] that discrimination based on gender stereotyping falls within Title VII’s prohibitions.”). In addition, in the context of federal sector cases, the Commission has concluded that sex-based harassment includes harassment based on sexual orientation or gender identity. See, e.g., Lusardi, 2015 WL 1607756, at *10-13 (finding that harassment based on the plaintiff’s transgender status violates section 717); Baldwin, 2015 WL 4397641, at *7-8 (stating that discrimination, including harassment, that is based on sexual orientation violates section 717).

³⁸ See, e.g., Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154, 173 (D. Md. 2022) (concluding that a reasonable jury could find that the plaintiff was subjected to gender identity-based harassment that was objectively severe or pervasive, including derogatory terms referring to her transgender status); Brooks v. Temple Univ. Health Sys., Inc., No. 21-1803, 2022 WL 1062981, at *12 (E.D. Pa. Apr. 8, 2022) (denying summary judgment to the employer on the plaintiff sex-based hostile work environment claim where the plaintiff alleged, among other things, that he was called a “f*ggot”).

³⁹ See, e.g., Roberts, 998 F. 3d at 121 (stating that alleged physical assaults may be part of a pattern of objectionable, sex-based discriminatory behavior that supports a hostile environment claim); Eller, 580 F. Supp. 3d at 173 (holding that a reasonable jury could find that alleged harassment, which included “multiple physical assaults, including one incident when [a transgender teacher] was shoved out of a door, and two incidents . . . when students who had used slurs about her transgender status stepped and pressed down hard on her foot,” was objectively severe or pervasive).

⁴⁰ See, e.g., Doe v. Arizona, No. CV-18-00348, 2019 WL 2929953, at *3 (D. Ariz. July 8, 2019) (denying summary judgment to the employer on the plaintiff’s sex-based harassment claim where the plaintiff, a corrections officer, presented evidence including that “supervisors regularly disregarded his requests to conceal his status for the purpose of protecting his safety, and repeatedly engaged in behavior that may be considered harassment by a jury”); Roberts v. Clark Cnty. Sch. Dist., 215 F. Supp. 3d 1001, 1017 (D. Nev. 2016) (denying summary judgment to the employer on a school police officer’s sex-based harassment claim where the employee was “blindsided” by emails that the school district sent to every police department employee disclosing sensitive information about the plaintiff’s sexual identity and invited coworkers to ask questions about his transition).

⁴¹ See, e.g., Brooks, 2022 WL 1062981, at *12 (stating that comments that included “being picked on for his feminine presentation” may be “severe enough to alter the conditions of one’s work environment”).

⁴² See Copeland, 2024 WL 1316677, at *5-9 (concluding that a reasonable jury could find that a male transgender corrections officer was subjected to a sex-based hostile work environment where, among other things, supervisors, coworkers, and inmates intentionally and repeatedly referred to him using feminine pronouns or called him “ma’am”). Courts—even prior to the Supreme Court’s Bostock decision—have viewed evidence of intentional misgendering of transgender persons as supportive of a hostile work environment claim under Title VII. See, e.g., Houlb v. Saber Healthcare Grp., No. 1:16CV02130, 2018 WL 1151566, at *2 (N.D. Ohio Mar. 2, 2018) (holding that the alleged misgendering, together with the other alleged offensive conduct, was sufficiently severe or pervasive to constitute a violation of Title VII for purposes of summary judgment); Tudor v. Se. Okla. State Univ., No. CIV-15-324-C, 2017 WL 4849118, at *1 (W.D. Okla. Oct. 26, 2017) (same); Versace v. Starwood Hotels & Resorts Worldwide, Inc., No. 6:14-cv-1003-Orl-31KRS, 2015 WL 12820072, at *7 (M.D. Fla. Dec. 3, 2015) (considering alleged misgendering to support the plaintiff’s hostile environment claim, but finding the alleged incidents to be insufficiently frequent or severe to constitute a violation); see also Triangle Doughnuts, LLC, 472 F. Supp. 3d at 129-30 (holding that the employee plausibly alleged sex-based harassment based in part on being regularly misgendered); Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744, 758 (S.D. Ohio 2018) (same).

In federal sector EEO appeals, the Commission has concluded that misgendering and denial of access to a bathroom consistent with the individual’s gender identity may constitute sex discrimination in violation of Title VII. See, e.g., Jameson v. U.S. Postal Serv., EEOC Appeal No. 0120130992, 2013 WL 2368729, at *2 (May 21, 2013) (stating that repeated, intentional misuse of the name or pronoun with which a transgender employee identifies may constitute sex-based harassment); Lusardi, 2015 WL 1607756, at *10-13 (holding that a supervisor’s repeated and intentional use of the incorrect name and pronouns for the complainant, in addition to the agency’s refusal to allow the complainant to use the restroom consistent with her gender identity, were actions sufficiently severe or pervasive to subject the complainant to a hostile work environment based on her sex).

⁴³ See, e.g., Triangle Doughnuts, 472 F. Supp. 3d at 129, 135 (listing allegations that plaintiff was prevented from using a bathroom that was consistent with her gender identity as among the allegations that supported her Title VII and ADA hostile work environment claims). In addition to being part of a harassment claim, denial of access to a bathroom consistent with one’s gender identity may be a discriminatory action in its own right and should be evaluated accordingly. See, e.g., Lusardi, 2015 WL 1607756, at *6-10 (finding that the agency subjected a transgender employee to disparate treatment when it restricted her access to the women’s restroom on account of her gender identity).

⁴⁴ See Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1217 (D. Or. 2002) (denying summary judgment to the employer where the alleged harassment included “questions such as, ‘Do you wear the dick in the relationship?’ and, ‘Are you the man?’”).

⁴⁵ This example is adapted from the facts in Cunningham v. Burlington Coat Factory Warehouse Corp., No. 1:18-cv-11266, 2024 WL 863236 (D.N.J. Feb. 29, 2024).

Additional cases involving harassment based on gender identity include Copeland, 2024 WL 1316677; Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154 (D. Md. 2022); Grimes v. Cnty. of Cook, 19-cv-6091, 2022 WL 1641887 (N.D. Ill. May 24, 2022); Triangle Doughnuts, 472 F. Supp. 3d 115; Doe v. Arizona, 2019 WL 2929953; and Drew v. U.S. Dep’t of Veterans Affs., No. CV H-16-3523, 2023 WL 186881 (S.D. Tex. Jan. 12, 2023).

⁴⁶ 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer to . . . otherwise discriminate against any individual with respect to . . . [the] terms, conditions, or privileges of employment, because of such individual’s age.”).

⁴⁷ The ADEA does not apply to discrimination or harassment based on workers being younger than others, such as harassment based on the belief that someone is too young for a certain position, even if the targeted individual is forty or over. See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (holding that the ADEA does not prohibit favoring older workers over younger workers, even if the younger workers are within the protected class of individuals forty or older).

⁴⁸ See, e.g., Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 442-43 (5th Cir. 2011) (holding that a fact finder could conclude that the plaintiff, a used car salesperson, was subjected to a hostile work environment based on his age where the plaintiff’s supervisor had made profane, age-based references to the plaintiff up to half a dozen times a day, the supervisor had engaged in physically threatening behavior toward the plaintiff, and the supervisor had “steered” sales away from the plaintiff and toward younger salespersons).

⁴⁹ See, e.g., Davis-Garett v. Urb. Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (the plaintiff adduced sufficient evidence of age-based hostile work environment where, in addition to age-based remarks, “from the start of her employment . . ., [she was] denied the training given to younger sales associates and relegated to work almost exclusively in the fitting room, and later [] assigned the most unpleasant and arduous duties”); Guthrie v. J.C. Penney Co., 803 F.2d 202, 208 (5th Cir. 1986) (repeated inquiries into the plaintiff’s retirement plans constituted evidence of “intentional harassment” sufficient to support claim of age-based constructive discharge); see also Written Testimony of Patrick Button, Assistant Professor, Department of Economics, Tulane University, EEOC Meeting of June 14, 2017 - The ADEA @ 50 - More Relevant Than Ever, https://www.eeoc.gov/meetings/meeting-june-14-2017-adea-50-more-relevant-ever/button (discussing evidence of age discrimination in hiring).

⁵⁰ Under Title I of the Americans with Disabilities Act, a disability is “a physical or mental impairment that substantially limits one or more [of an individual’s] major life activities”; a “record of such an impairment”; or “being regarded as having such an impairment,” if the individual establishes that he or she has been subjected to an adverse employment action, such as harassment, because of an actual or perceived physical or mental impairment and that impairment is not both transitory and minor. Id. § 12102(1), (3).

⁵¹ 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.”). Section 501 of the Rehabilitation Act of 1973 prohibits employment discrimination against applicants or employees of the federal government who are individuals with disabilities. 29 U.S.C. § 791. The Rehabilitation Act Amendments of 1992 made clear that the standards applied under Title I of the ADA also apply to Section 501 employment discrimination claims. 29 U.S.C. § 791(g).

⁵² See, e.g., Quiles-Quiles v. Henderson, 439 F.3d 1, 4, 7-8 (1st Cir. 2006) (affirming a jury verdict finding that a Postal Service employee was subjected to a hostile work environment based on his mental disability (depression) when supervisors mocked him on a daily basis about his mental impairment and commented to other employees that he was a “great risk” because he was receiving psychiatric treatment); Fox v. Gen. Motors Corp., 247 F.3d 169, 178-79 (4th Cir. 2001) (upholding a jury finding that the plaintiff, who suffered from chronic back issues, was subjected to a hostile work environment based on disability where two supervisors constantly berated him and other workers with disabilities and encouraged other employees to ostracize workers with disabilities and refuse to give them materials they needed to do their jobs).

⁵³ See, e.g., Fox v. Costco Wholesale Corp., 918 F.3d 65, 75-76 (2d Cir. 2019) (concluding that an employee with Tourette’s Syndrome and obsessive compulsive disorder had raised a material issue of fact as to whether he was subjected to ongoing and pervasive discriminatory conduct based on disability when coworkers mocked his verbal and physical tics); Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 446 (5th Cir. 2017) (concluding that a reasonable jury could find that the plaintiff was subjected to severe or pervasive disability-based harassment where he had presented evidence that coworkers repeatedly mocked his stutter and his supervisor mocked him in a department-wide meeting); Martsolf v. United Airlines, Inc., No. 13-1581, 2015 WL 4255636, at *13 (W.D. Pa. July 14, 2015) (rejecting the employer’s motion for summary judgment on the disability-based harassment claim of a plaintiff with a hearing and speech disability where there was evidence that employees screamed at the plaintiff when she could not hear them and mocked the way she spoke); cf. EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 733 (5th Cir. 2007) (affirming jury verdict finding intentional discrimination where, among other things, a supervisor “stated that he no longer wanted to see [the plaintiff’s] ‘cr*ppled crooked self, going down the hall hugging the walls’”).

⁵⁴ See Patton, 874 F.3d at 446 (concluding that repeated mocking of a stutter “rises above simple teasing and offhand comments” and can support a hostile work environment claim); see also Salas v. N.Y.C. City Dep’t of Investigation, 298 F. Supp. 3d 676, 684-85 (S.D.N.Y. 2018) (concluding that daily mimicking of a stutter by a coworker is “a very specific and self-explanatory form of bullying” that is sufficient to survive a motion to dismiss).

⁵⁵ See, e.g., Fox v. Gen. Motors Corp., 247 F.3d at 174 (upholding a jury verdict on a disability harassment claim based in part on evidence that a supervisor made disparaging comments about employees with disabilities assigned light duty, including calling them “hospital people,” supervising their work more closely, and segregating them from other employees); Pantazes v. Jackson, 366 F. Supp. 2d 57, 71 (D.D.C. 2005) (holding that a jury could find that unreasonably lengthy delays in responding to the plaintiff’s accommodation requests, combined with other harassing acts, were sufficient to establish a hostile work environment).

Harassment based on an individual’s request for, or receipt of, a reasonable accommodation also could violate the ADA’s interference provision, see 42 U.S.C. § 12203(b); 29 C.F.R. § 1630.12(b), and/or the ADA’s retaliation provision, see 42 U.S.C. § 12203(a); EEOC, Enforcement Guidance on Retaliation and Related Issues § II.A.2.e (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues#e._Examples.

⁵⁶ 42 U.S.C. § 12102(1)(C), (3) (providing that an individual has a disability if the individual is “regarded as having . . . an impairment”; and that an individual meets this requirement if the individual has been “subjected to an action prohibited [under the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity”); 29 C.F.R. § 1630.2(g)(1)(iii) (noting that the ADA’s protections apply where an “individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both ‘transitory and minor’”); see, e.g., Quiles-Quiles, 439 F.3d at 5-8 (concluding with respect to the plaintiff’s disability harassment claim that the evidence supported the jury’s finding that the plaintiff was discriminated against because he was either actually disabled or perceived as such by his employer).

⁵⁷ 42 U.S.C. § 12102(1)(A)-(B) (including within the definition of disability a record of a physical or mental impairment).

⁵⁸ The ADA expressly prohibits associational discrimination. See 42 U.S.C. § 12112(b)(4) (stating that discrimination against a qualified individual with a disability includes “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association”); 29 C.F.R. § 1630.8 (“It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.” (emphasis added)); see, e.g., Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 467-70 (2d Cir. 2019) (ruling that the plaintiff stated a claim of associational discrimination under the ADA where he alleged that he was qualified to perform his job but was discriminated against based on his employer’s perception that he was unavailable or distracted due to his daughter’s medical condition).

Harassment based on association under other EEO statutes also is discussed below at notes 67 -71 and accompanying text.

⁵⁹ Genetic information is defined to include an “individual’s genetic test,” “genetic tests of family members,” and “the manifestation of a disease or disorder in family members.” 42 U.S.C. § 2000ff(4)(A). The definition of genetic information also includes “any request for, or receipt of, genetic services, or participation in clinical research which includes genetic services, by [an] individual or any family member of such individual.” 42 U.S.C. § 2000ff(4)(B). Genetic information is further defined to include, “with respect to [] an individual or family member of an individual who is a pregnant woman, [the] genetic information of any fetus carried by such pregnant woman,” and “with respect to an individual or family member utilizing an assisted reproductive technology, [the] genetic information of any embryo legally held by the individual or family member.” 42 U.S.C. § 2000ff-8(b).

⁶⁰ 42 U.S.C. § 2000ff-1(a)(1) (“It shall be an unlawful employment practice for an employer to . . . discriminate against any employee with respect to the . . . terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee.”).

⁶¹ 42 U.S.C. § 2000ff(4)(A).

⁶² Cases alleging harassment under GINA based on the manifestation of a disease or disorder in a family member likely will also be covered by the ADA’s prohibition against associational discrimination. See supra note 58 (discussing associational discrimination under the ADA). For example, if an employee is harassed because the employee’s mother has cancer, then the employee may raise claims under GINA, as well as under the ADA for associational discrimination.

⁶³ E.g., 42 U.S.C. § 2000e-3(a); see also EEOC, Enforcement Guidance on Retaliation and Related Issues, § II.A (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues (discussing participation and opposition as protected activity).

⁶⁴ Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006); see also Laster v. City of Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014) (applying the Burlington Northern standard).

⁶⁵ See, e.g., Carr v. NYC Transit Auth., 76 F.4th 172, 181 (2d Cir. 2023) (“[W]hen analyzing a retaliation claim, the sole inquiry regarding the third element of the prima facie case is whether the allegedly retaliatory actions were materially adverse. Even if a plaintiff labels her retaliation claim as a ‘retaliatory hostile work environment’ claim, courts should not consider whether the allegedly retaliatory actions meet the higher ‘severe and [sic] pervasive’ standard. All that is relevant is whether the actions, taken in the aggregate, are materially adverse and would dissuade a reasonable employee from making a complaint of discrimination.”); Chambers v. Dist. of Columbia, 35 F.4th 870, 876 (D.C. Cir. 2022) (en banc) (“[T]here are fundamental differences between the antidiscrimination and the antiretaliation provisions. . . . Unlike the antidiscrimination provision, the antiretaliation provision is not expressly limited to actions affecting the terms, conditions, or privileges of employment.”); Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862 (11th Cir. 2020) (“[T]he standard applicable to all Title VII retaliation claims is the Burlington Northern ‘well might have dissuaded’ standard.”); Moore v. City of Phila., 461 F.3d 331, 341-42 (3d Cir. 2006).

⁶⁶ See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283, 1299 (11th Cir. 2012) (“[A] harasser’s use of epithets associated with a different ethnic or racial minority than the plaintiff will not necessarily shield an employer from liability for a hostile work environment.”); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 401-02 (5th Cir. 2007) (concluding that the EEOC presented sufficient evidence to support its national origin harassment claim where coworkers repeatedly referred to an employee of Indian descent as “Taliban” or “Arab” and stated that “[t]his is America . . . not the Islamic country where you came from,” even though the harassing comments did not accurately describe the employee’s actual country of origin); Goings v. Lopinto, No. 22-2549, 2023 WL 2709826, at *5 (E.D. La. Mar. 30, 2023) (stating that “[d]iscrimination on the basis of sexual orientation, including perceived sexual orientation, is prohibited under Title VII” and denying the employer’s motion to dismiss where the plaintiff alleged he was called slurs and derogatory terms targeting homosexual individuals by his supervisor, who perceived the plaintiff as gay after seeing a photograph of the plaintiff shirtless and wrestling another male coworker); Kallabat v. Mich. Bell Tel. Co., No. 12-CV-15470, 2015 WL 5358093, at *3-4 (E.D. Mich. June 18, 2015) (denying summary judgment to the employer on the plaintiff’s claim that he was harassed based on the mistaken perception that he was Muslim); Arsham v. Mayor & City Council of Balt., 85 F. Supp. 3d 841, 844, 849 (D. Md. 2015) (holding that an employee of Persian descent stated a valid claim of national origin discrimination and harassment even though her employer mistakenly believed her to be a member of the Parsee ethnic group, which the plaintiff researched and believed originated in India and was a lower caste). But see, e.g., Yousif v. Landers McClarty Olathe KS, LLC, No. 12-2788, 2013 WL 5819703, at *3-4 (D. Kan. Oct. 29, 2013) (stating that “perceived” discrimination claims are not cognizable under Title VII); El v. Max Daetwyler Corp., No. 3:09-CV-415, 2011 WL 1769805, at *5-6 (W.D.N.C. May 9, 2011) (rejecting the proposition that Title VII provides a claim for discrimination based on misperception), aff’d, 451 F. App’x 257 (4th Cir. 2011).

⁶⁷ See, e.g., Frith v. Whole Foods Mkt., Inc., 38 F.4th 263, 272 (1st Cir. 2022) (concluding that claims alleging discrimination based on interracial association “are fundamentally consistent with Bostock v. Clayton County, 590 U.S. 644 (2020)] and Title VII’s plain language prohibiting action ‘because of such individual[ ]’ plaintiff’s race”); Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (6th Cir. 2009) (observing that “Title VII protects individuals who . . . are ‘victims of discriminatory animus toward [protected] third persons with whom the individuals associate’” and that a complainant may be discriminated against based on his own race because the difference between his race and the race of the individual with whom he associated was the cause of the discrimination (quoting Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999))); Holcomb v. Iona Coll., 521 F.3d 130, 138-39 (2d Cir. 2008) (holding that Title VII prohibits discrimination based on interracial association and observing that multiple other circuits agree); cf. Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175-78 (2011) (holding that the plaintiff had standing to sue under Title VII where he alleged that his employer terminated him in order to retaliate against his fiancée for a sex discrimination charge she filed against their mutual employer; in authorizing a “person aggrieved” to file a charge or bring a lawsuit, Title VII provides a cause of action to those within the “zone of interests” “arguably [sought] to be protected by the statute”); Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 467-70 (2d Cir. 2019) (ruling that the plaintiff had stated a claim of associational discrimination under the ADA where he alleged that he was qualified to perform his job but was discriminated against based on his employer’s perception that he was unavailable or distracted due to his daughter’s medical condition).

⁶⁸ See, e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 128 (2d Cir. 2018) (en banc) (“[W]e hold that sexual orientation discrimination, which is based on an employer’s opposition to association between particular sexes and thereby discriminates against an employee based on their own sex, constitutes discrimination ‘because of . . . sex.’”), aff’d on other grounds sub nom. Bostock v. Clayton Cnty., 590 U.S. 644 (2020).

⁶⁹ Holcomb, 521 F.3d at 131.

⁷⁰ Tetro, 173 F.3d at 994 (“A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus for the discrimination is a prejudice against the biracial child.”).

⁷¹ See, e.g., Barrett, 556 F.3d at 513 (concluding that the district court erred in rejecting two White employees’ claim of associational discrimination on the grounds that they failed to show the “requisite degree of association” with Black coworkers and explaining that the degree of association is irrelevant in assessing whether a plaintiff has a valid claim of associational discrimination (citing Drake v. 3M, 134 F.3d 878, 884 (7th Cir. 1998)); cf. Kengerski v. Harper, 6 F.4th 531, 534-35, 539 (3d Cir. 2021) (noting that associational discrimination is not limited to close or substantial relationships and ruling that the complainant could pursue his retaliation claim for making a complaint regarding harassment based on his association with his biracial grand-niece).

⁷² See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77-79 (1998) (involving male employees sexually harassing a male coworker); Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 908 (7th Cir. 2018) (rejecting “entirely” the view that it “strains credulity” that African Americans might be subjected to unlawful race-based harassment where many managers in the same workplace were also African American and explaining that there are many reasons why women and minorities might tolerate discrimination against members of their own class or might participate in the discrimination themselves).

⁷³ See Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 438 (5th Cir. 2011).

⁷⁴ This example is adapted from the facts in Kang v. U. Lim Am., Inc., 296 F.3d 810 (9th Cir. 2002).

⁷⁵ See, e.g., Masud v. Rohr-Grove Motors, Inc., No. 13 C 6419, 2015 WL 5950712, at *3-5 (N.D. Ill. Oct. 13, 2015) (denying summary judgment for the employer on the plaintiff’s harassment claim based on “evidence, viewed in the light most favorable to plaintiff, support[ing] a pervasive pattern of discriminatory harassment based on not one but various protected characteristics all at once”); see also Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994) (recognizing a claim of intersectional discrimination against an Asian woman, despite favorable consideration of an Asian man and a White woman, noting that “when a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex” (emphasis in the original)); Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032-34 (5th Cir. 1980) (recognizing that “discrimination against black females can exist even in the absence of discrimination against black men or white women”).

⁷⁶ See, e.g., Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1048 (10th Cir. 2020) (recognizing Title VII claim alleging discrimination against older women).

⁷⁷ E.g., Ahmed v. Astoria Bank, 690 F. App’x 49, 51 (2d Cir. 2017) (holding that a reasonable jury could find that the plaintiff was subjected to unlawful harassment based on race, national origin, and religion, based in part on a senior supervisor’s comments that she should remove her hijab, which he called a “rag,” and his comment on September 11, 2013, that the plaintiff and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything”).

⁷⁸ See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (plurality opinion) (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”); Tang v. Citizens Bank, 821 F.3d 206 (1st Cir. 2016) (reversing summary judgment for the employer where harassment of an Asian woman included a discussion of the purported obedience of Asian women); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 459 (5th Cir. 2013) (en banc) (upholding a jury verdict on the grounds that a claim that a male employee was harassed because of sex could be established by evidence showing that the male harasser targeted the employee for not conforming to the harasser’s “manly-man” stereotype); Waldo v. Consumers Energy Co., 726 F.3d 802 (6th Cir. 2013) (harassment of a female employee in a heavily male environment included telling her to “pee like a man” and ridiculing her for carrying a purse); Rosario v. Dep’t of Army, 607 F.3d 241, 244 (1st Cir. 2010) (harassment included a supervisor constantly complaining about the plaintiff’s work attire and bringing coworkers to look at her clothes); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) (denying summary judgment for employer where the plaintiff was harassed based on gender stereotypes of how a man should look, speak, and act because the plaintiff had a high voice; walked in a certain manner; did not curse; was very well groomed; crossed his legs; and discussed topics like art, music, and interior design); Kang, 296 F.3d 810 (hostile work environment claim based on supervisor’s stereotypical notions that Korean workers were better than others and that the plaintiff failed to live up to his supervisor’s expectations); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (systemic abuse of a male restaurant employee for failing to conform to male stereotypes); Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154 (D. Md. 2022) (employer’s response to harassment of transgender teacher included trying to hide plaintiff’s gender identity by restricting her clothes, footwear, make-up, and nail polish); Membreno v. Atlanta, 517 F. Supp. 3d 425 (D. Md. 2021) (harassment of transgender worker included questioning how a man could be attracted to her and ridiculing and demeaning her when she used the ladies’ bathroom to the point that she would avoid relieving herself); Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 129 (E.D. Pa. 2020) (harassment of transgender worker included being subjected to a stricter dress code than other female employees); Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744 (S.D. Ohio 2018) (denying motion to dismiss transgender woman’s hostile work environment claim, which included allegations that she was told to “just dress like a man,” that she made an “ugly woman,” and that after the worker complained of several years of harassment, she was told to “be like a man” and “act like a man”); Salinas v. Kroger Tex., L.P., 163 F. Supp. 3d 419 (S.D. Tex. 2016) (harassment of male coworker was based on the harasser’s perception that the plaintiff was effeminate and had “a body like a woman”); Barrett v. Pa. Steel Co., No. 2:14-CV-01103, 2014 WL 3572888 (E.D. Pa. July 21, 2014) (male plaintiff who worked in “office” portion of facility stated claim of sex harassment where he alleged that he was “made fun of and sexually harassed because he did not participate in cursing or engage in crude banter as did his male co-workers from the ‘shop’ portion of the facility”); Zhao v. State Univ. of New York., 472 F. Supp. 2d 289, 313 (E.D.N.Y 2007) (denying the employer’s motion for summary judgment where evidence included “facially neutral incidents [that] could be consistent with an employer [] punishing an employee for not achieving a standard of performance that has been improperly inflated due to impermissible ethnic stereotyping” where supervisor allegedly made comments suggesting “Chinese employees should work longer and harder than anyone else”); Rubin v. Kirkland Chrysler-Jeep, Inc., 98 Fair Empl. Prac. Cas. (BNA) 159, 2006 WL 1009338 (W.D. Wash. Apr. 13, 2006) (harassment included references to stereotypes of Jews as both cheap and unduly interested in money).

⁷⁹ See Plaetzer v. Borton Auto., Inc., No. Civ. 02-3089, 2004 WL 2066770, at *6 (D. Minn. Aug. 13, 2004) (concluding that the plaintiff had presented sufficient evidence to send her harassment claim to a jury where she experienced repeated comments and other conduct implying or stating that she was unqualified and could be fired at any time because she was a woman and because she spent too much time caring for her children); see also Chadwick v. Wellpoint, Inc., 561 F.3d 38, 42, 47-48 (1st Cir. 2009) (holding that a reasonable jury could find that the plaintiff, the mother of an eleven-year-old and six-year-old triplets, was denied a promotion based on the “common stereotype about the job performance of women with children”).

⁸⁰ See Burns v. Johnson, 829 F.3d 1, 13-14, 17 (1st Cir. 2016) (holding that a reasonable jury could conclude that a male supervisor’s harassment of a female subordinate was based, in part, on the gender stereotype that women do not belong in positions of leadership).

⁸¹ See, e.g., Price Waterhouse, 490 U.S. at 250.

⁸² Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (describing insults directed at Black employees based on negative stereotyping such as “don’t touch anything” and “don’t steal” as “inherently racist”).

⁸³ The causation principles discussed in this enforcement guidance focus on hostile work environment claims. As discussed below in section III.A, however, unlawful harassment can also involve an explicit change to a term, condition, or privilege of employment, such as the denial of a promotion for rejecting sexual advances. For more guidance on how to evaluate an allegation involving an explicit change to employment, refer to EEOC guidance that discusses discriminatory employment decisions. See, e.g., EEOC, Enforcement Guidance on National Origin Discrimination § III (2016), https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination#_Toc451518806; EEOC, Compliance Manual Section 15: Race & Color Discrimination § 15-V.A (2006), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination#VA.

⁸⁴ See, e.g., Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003) (holding that the employer was entitled to summary judgment where evidence showed that harassment was based on inter-departmental politics and personality conflicts).

⁸⁵ In this example, there was no evidence that the harassment was based on color, national origin, or any another legally protected characteristic. By contrast, harassment based on a legally protected characteristic is covered under EEO law even if it also is based on non-protected reasons.

⁸⁶ This example is adapted from the facts in Webb v. Merck & Co., 450 F. Supp. 2d 582 (E.D. Penn. 2006). “A reasonable jury could find that statements such as ‘my animals’ and ‘zookeeper,’ when used in referring solely to African-American employees, ‘send a clear message and carry the distinct tone of racial motivations and implications. They 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 597 (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996)); see also Galdamez v. Potter, 415 F.3d 1015, 1024 n.6 (9th Cir. 2005) (“[T]here are no ‘talismanic expressions’ of racial animus necessary to sustain a harassment claim, and . . . racially charged ‘code words’ may provide evidence of discriminatory intent by ‘sending a clear message and carrying the distinct tone of racial motivations and implications.’” (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004))).

For a discussion of how the link between harassment and a protected basis can be established by context, see section II.B.4.

⁸⁷ See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 69 (1986) (citing 29 C.F.R. § 1604.11(b) for the proposition that “the trier of fact must determine the existence of sexual harassment in light of ‘the record as a whole’ and ‘the totality of the circumstances’”).

⁸⁸ In this document, use of the term “discriminatory” to describe conduct means only that the conduct was based on a protected characteristic and does not indicate that conduct necessarily satisfies other legal requirements to establish that the conduct violates federal EEO laws, such as creating a hostile work environment.

⁸⁹ See, e.g., Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63 (1st Cir. 2019) (stating that “the use of sexually degrading, gender-specific epithets, such as . . . ‘b*tch,’ . . . constitute[s] harassment based upon sex” (omissions and second alteration in original) (quoting Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229 (1st Cir. 2007))); Arrieta-Colon v. Wal-Mart P.R., Inc., 434 F.3d 75, 80, 89 (1st Cir. 2006) (agreeing with the lower court that there was sufficient evidence to support the jury verdict on the plaintiff’s ADA hostile work environment claim where the plaintiff had a medical condition relating to sexual dysfunction and was subjected to “constant mockery and harassment . . . by fellow coworkers and supervisors alike due to his condition,” including comments about impotence, his “pump,” and his sexual functioning); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001) (holding that a workplace where a supervisor constantly referred to African Americans as “monkeys” and “n****rs” was a racially hostile work environment, noting that “the word ‘n****r’ is pure anathema to African-Americans” and that calling someone a “monkey” “goes far beyond the merely unflattering; it is degrading and humiliating in the extreme”).

⁹⁰ Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 271 (6th Cir. 2009) (concluding that women were subjected to sex discrimination by conduct that was patently degrading to women, even though members of both sexes were exposed to the conduct, and concluding that such conduct discriminates against women, irrespective of the harasser’s motive); see also Roy, 914 F.3d at 63 (noting that gender-specific epithets can ground a harassment claim “[r]egardless of [the harasser’s] particular and subjective motives”); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1001 (10th Cir. 1996) (concluding that sex-based epithets discriminated against the plaintiff based on her sex even if they were motivated by gender-neutral reasons); Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982) (concluding that use of the terms “n****r-rigged” and “black ass” supported a race-based hostile work environment claim even though, the employer asserted, they were not “intended to carry racial overtones”); cf. Int’l Union, United Auto., Aerospace & Agric. Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (“[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.”); Lounds v. Lincare, Inc., 812 F.3d 1208, 1228-31 (10th Cir. 2015) (concluding that the district court erred in discounting the environmental effect of offensive race-based conduct when the court focused on the “ostensibly benign motivation or intent” of the alleged harassers).

⁹¹ Sharp v. S&S Activewear, LLC, 69 F.4th 974, 981 (9th Cir. 2023) (concluding that “sexually graphic, violently misogynistic” music can give rise to a sex-based hostile work environment claim and that even if the music was not directed toward a particular woman, “female employees allegedly experienced the content in a unique and especially offensive way”); Gallagher, 567 F.3d at 271 (concluding that women were subjected to sex discrimination by conduct that was patently degrading to women, even though members of both sexes were exposed to the conduct).

⁹² This example is adapted from the facts in Mangel v. Graham Packaging Co., No. 14-CV-0147, 2016 WL 1266257 (W.D. Pa. Apr. 1, 2016).

⁹³ See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (plurality opinion) (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”); Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 303 (4th Cir. 2019) (concluding that the plaintiff’s allegation that male coworkers started a rumor that she had sex with her boss to obtain a promotion invoked the “deeply rooted perception—one that unfortunately still persists—that generally women, not men, use sex to achieve success”); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 459 (5th Cir. 2013) (en banc) (upholding a jury verdict on the grounds that a claim that a male employee was harassed because of sex could be established by evidence showing that the male harasser targeted the employee for not conforming to the harasser’s “manly-man” stereotype).

⁹⁴ See Plaetzer v. Borton Auto., Inc., No. Civ. 02-3089, 2004 WL 2066770, at *6 (D. Minn. Aug. 13, 2004) (concluding that the plaintiff had presented sufficient evidence to send her harassment claim to a jury where she experienced repeated comments and other conduct implying or stating that she was unqualified and could be fired at any time because she was a woman and because she spent too much time caring for her children); see also Chadwick v. Wellpoint, Inc., 561 F.3d 38, 42, 47-48 (1st Cir. 2009) (holding that a reasonable jury could find that the plaintiff, the mother of an eleven-year-old and six-year-old triplets, was denied a promotion based on the “common stereotype about the job performance of women with children”).

⁹⁵ See Burns v. Johnson, 829 F.3d 1, 13-14, 17 (1st Cir. 2016) (holding that a reasonable jury could conclude that a male supervisor’s harassment of a female subordinate was based, in part, on the gender stereotype that women do not belong in positions of leadership).

⁹⁶ See, e.g., Price Waterhouse, 490 U.S. at 250.

⁹⁷ See King v. Aramark Servs., Inc., 96 F.4th 546, 564 (2d Cir. 2024) (“[A] reasonable jury could conclude that Thomas’s singling out of King for weight-related remarks and conduct—remarks and conduct that he did not direct toward her male peers—reflected not only a bias against individuals with certain body types, but also a gender-based bias.”).

⁹⁸ See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (observing that a person is considered transgender “precisely because of the perception that his or her behavior transgresses gender stereotypes” (citing Price Waterhouse, 490 U.S. at 251)); Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (stating that “discrimination against a plaintiff who is trans[gender]—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman”); see also supra note 78.

⁹⁹ See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004) (referring to a Black employee as a “drug dealer” “might certainly be deemed to be a [racial] code word or phrase” (citing Daniels v. Essex Grp., Inc., 937 F.2d 1264, 1273 (7th Cir. 1991))).

¹⁰⁰ See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (describing insults directed at Black employees based on negative stereotyping such as “don’t touch anything” and “don’t steal” as “inherently racist”).

¹⁰¹ See, e.g., Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (concluding that the plaintiff could establish that he was harassed based on his national origin, Korean, where his supervisor allegedly subjected Korean workers to abuse based, in part, on their failure to “live up” to the stereotype that Korean workers are “better than the rest”).

¹⁰² See, e.g., Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d Cir. 2007) (holding that “the relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class,” and observing that a supervisor’s assertion that an employee, who was in her sixties, was well suited to work with seniors was not offensive but nevertheless had a strong tendency in the circumstances to show that the supervisor believed the employee, because of her age, was not well-suited to deal with younger clientele), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

¹⁰³ See, e.g., Sheehan v. Donlen Corp., 173 F.3d 1039, 1044-45 (7th Cir. 1999) (upholding a jury verdict where a reasonable jury could conclude that “a supervisor’s statement to a woman known to be pregnant that she was being fired so that she could ‘spend more time at home with her children’ reflected unlawful motivations because it invoked widely understood stereotypes the meaning of which is hard to mistake”).

¹⁰⁴ This example is adapted from the facts in EEOC v. Boh Bros. Construction Co., 731 F.3d 444, 449-50, 457-60 (5th Cir. 2013) (en banc) (applying Oncale v. Sundowner Offshore Services,, Inc., 523 U.S. 75 (1998), which recognized that same-sex sexual harassment can violate Title VII).

¹⁰⁵ See, e.g., Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63 (1st Cir. 2019) (noting that “a reasonable jury could infer that” a comment about the plaintiff’s body “was made in part because of her sex, given the context” that included evidence that her coworkers regularly “sexualiz[ed]” her and “emphasiz[ed] aspects of her appearance, such as her blonde hair”); Tang v. Citizens Bank, N.A., 821 F.3d 206, 216-17 (1st Cir. 2016) (considering the context, use of the word “ass” was based on sex); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 85 (2d Cir. 2010) (Calabresi, J., concurring) (viewing comment by male coworker about the plaintiff’s “big fat ass” to be based on sex).

¹⁰⁶ Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam); see also Paasewe v. Action Grp., Inc., 530 F. App’x 412, 416 (6th Cir. 2013) (per curiam) (holding that a reasonable jury could find that the plaintiff was subjected to race-based harassment where the plaintiff’s coworker called him “boy” and threatened his life).

¹⁰⁷ See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082-83 (3d Cir. 1996) (stating that racial harassment could be based on “code words,” which referred to Black employees as “another one,” “one of them,” “that one in there,” and “all of you”); cf. Martin v. Brondum, 535 F. App’x 242, 244 (4th Cir. 2013) (explaining in a case involving an alleged violation of the Fair Housing Act that “[r]acially charged code words may provide evidence of discriminatory intent by sending a clear message and carrying the distinct tone of racial motivations and implications” (alteration in original) (quoting Guimaraes v. SuperValu, Inc., 674 F.3d 962, 974 (8th Cir. 2012))); Gipson v. KAS Snacktime Co., 171 F.3d 574, 579 (8th Cir. 1999) (characterizing a supervisor’s use of the phrase, “your kind” as “offensive and racially tinged”).

¹⁰⁸ This example is adapted from the facts in Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012).

¹⁰⁹ See, e.g., Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 388 (2d Cir. 2020) (“Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.”); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547-48 (2d Cir. 2010) (stating that circumstantial evidence that facially sex-neutral acts were part of a pattern of sex discrimination may include evidence that the same individual engaged in multiple acts of harassment, some facially sex-based and some not); Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (stating that conduct that appears sex-neutral in isolation may appear sex-based when viewed in the context of the broader work environment); Shanoff v. Ill. Dep’t of Hum. Servs., 258 F.3d 696, 705 (7th Cir. 2001) (stating that a reasonable person could conclude that comments that were not facially discriminatory were “sufficiently intertwined” with facially discriminatory remarks to establish that the former were motivated by hostility to the plaintiff’s race and religion); O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (stating that “[c]ourts should avoid disaggregating a hostile work environment claim, dividing conduct into instances of sexually oriented conduct and instances of unequal treatment, then discounting the latter category”).

¹¹⁰ See, e.g., Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (concluding that instances of facially neutral harassment were not connected to overtly racial conduct as they “lack[ed] any congruency of person or incident”), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc).

¹¹¹ This example is adapted from the facts in EEOC v. T-N-T Carports, Inc., No. 1:09-CV-27, 2011 WL 1769352 (M.D.N.C. May 9, 2011).

¹¹² See, e.g., Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 236-37 (5th Cir. 2001) (upholding a jury verdict and concluding that the jury could have found that harassment, which began “almost immediately” after a supervisor learned that the plaintiff was HIV-positive, was based on disability).

¹¹³ See EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 842 (9th Cir. 2005) (holding that “offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees”).

¹¹⁴ This example is adapted from the facts in National Education Ass’n, Alaska, 422 F.3d at 842-44.

¹¹⁵ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998).

¹¹⁶ See EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 455-56 (5th Cir. 2013) (en banc) (agreeing with sister circuits that the three evidentiary paths in Oncale are not exclusive); see also, e.g., Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“These routes, however, are not exhaustive.”); Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005) (describing Oncale’s list as “non-exhaustive”).

¹¹⁷ Boh Bros., 731 F.3d at 456.

¹¹⁸ See, e.g., 42 U.S.C. 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”).

¹¹⁹ With respect to harassment claims, the Supreme Court has referred to two types of changes to the terms, conditions, or privileges of employment as “explicit” and “constructive” changes. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998). The terms are used in this document to facilitate discussion of the standards attached to each type of change to the terms or conditions of employment.

¹²⁰ See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); see also Ellerth, 524 U.S. at 752 (stating that “Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment”).

¹²¹ Quid pro quo harassment also has arisen in the context of religious harassment where a supervisor denies a job benefit to an employee who refuses to adhere to the supervisor’s religious principles. See Venters v. City of Delphi, 123 F.3d 956, 976-77 (7th Cir. 1997) (concluding that a jury could find that a radio dispatcher was subjected to quid pro quo religious harassment when she was discharged by the police chief for not adhering to his religious beliefs).

¹²² See, e.g., Barnes v. Costle, 561 F.2d 983, 989-90 (D.C. Cir. 1977) (holding that the plaintiff had alleged discrimination based on her sex when she rejected her supervisor’s advances and her position was abolished; the plaintiff alleged that, as a woman, she had been the target of her supervisor’s sexual desires and no male had been subjected to similar conduct); cf. Meritor Sav. Bank, FSB, 477 U.S. at 65 (distinguishing between a sexual harassment claim linked to the “grant or denial of an economic quid pro quo” and a hostile work environment claim).

¹²³ Gregory v. Daly, 243 F.3d 687, 698 (2d Cir. 2001).

¹²⁴ Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae Supporting Respondent at 16, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (No.97-569), 1998 WL 151472, at *16 (alterations in original) (quoting 42U.S.C. §2000e-2(a)(1)); see also Ellerth, 524 U.S. at 752 (noting that the terms “quid pro quo” and “hostile work environment” do not appear in the text of Title VII).

¹²⁵ Ellerth, 524 U.S. at 753-54; see also Chambers v. District of Columbia, 35 F.4th 870, 874-75 (D.C. Cir. 2022) (en banc) (“Once it has been established that an employer has discriminated against an employee with respect to that employee’s ‘terms, conditions, or privileges of employment’ because of a protected characteristic, the analysis is complete.”).

¹²⁶ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).

¹²⁷ Id.

¹²⁸ Id. at 21 (quoting Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 64 (1986).

¹²⁹ Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012) (citing, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (stating that the requirement of severity or pervasiveness “prevents Title VII from expanding into a general civility code”); Ziskie v. Mineta, 547 F.3d 220, 228 (4th Cir. 2008) (stating that an employee must “accommodate the normal run of aggravations that are part of holding a job”).

¹³⁰ Harris, 510 U.S. at 21.

¹³¹ Section III.C.1, below, discusses how to determine whether conduct is sufficiently related to be part of the same hostile work environment claim.

¹³² See infra notes 200-204 and accompanying text.

¹³³ Meritor Savings Bank, FSB, 477 U.S. at 68 (citation omitted).

¹³⁴ 29 C.F.R. § 1604.11(a) (defining sexual harassment as including “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature”).

¹³⁵ Meritor Sav. Bank, FSB, 477 U.S. at 68.

¹³⁶ Harris, 510 U.S. at 21-22.

¹³⁷ See, e.g., Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 904 (7th Cir. 2018) (holding that, because a reasonable jury could find that the conduct was unwelcome, there was an issue of material fact regarding subjective hostility); Kokinchak v. Postmaster Gen. of the U.S, 677 F. App’x 764, 767 (3d Cir. 2017) (treating unwelcomeness and subjective hostility as the same issue); Horney v. Westfield Gage Co., Inc., 77 F. App’x 24, 29 (1st Cir. 2003) (treating unwelcomeness and subjective hostility as the same issue); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 873 (9th Cir. 2001) (explaining that the issue of subjective hostility turns on whether conduct was unwelcome to the plaintiff).

¹³⁸ See, e.g., Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (stating that unwelcomeness is one of the requirements in establishing a hostile work environment based on sex); Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307 (6th Cir. 2016) (same); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (stating that unwelcomeness is one of the requirements in establishing a hostile work environment based on race); Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1248 (11th Cir. 2014) (same).

¹³⁹ See, e.g., Smelter v. S. Home Care Servs. Inc., 904 F.3d 1276, 1285 (11th Cir. 2018) (concluding that the plaintiff’s testimony about the impact that the alleged racial harassment had on her was sufficient for a jury to find that the plaintiff subjectively perceived the conduct as hostile, notwithstanding her failure to report the conduct to supervisors); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (concluding that subjective hostility was established through the plaintiff’s unrebutted testimony and his complaints to supervisors and the EEOC); Horney, 77 F. App’x at 29 (concluding that subjective hostility/unwelcomeness was established by the plaintiff’s testimony that the conduct she complained about made her feel offended and humiliated); Nichols, 256 F.3d at 873 (concluding that subjective hostility/unwelcomeness was established by the plaintiff’s complaints and his unrebutted testimony that conduct was unwelcome); Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341-42 (10th Cir. 1998) (concluding that evidence established a jury issue as to subjective hostility where the plaintiff testified that harassment made her “more and more stressed out and pretty cracked,” that she “hated” the conduct, that she was “pretty shocked,” and that she “just wanted to avoid the whole situation”).

¹⁴⁰ See, e.g., Wallace v. Performance Contractors, Inc., 57 F.4th 209, 223 (5th Cir. 2023) (concluding that the plaintiff presented sufficient evidence that she subjectively viewed the alleged harassment as hostile where she “complained about the harassment, reported it to her supervisors, and suffered psychological harm”); EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 433 (7th Cir. 2012) (concluding that there was sufficient evidence in the record showing that a teenage server at a restaurant found her supervisor’s comments and conduct subjectively offensive because she repeatedly informed him that his conduct was unwelcome and complained to two other restaurant managers about the conduct).

¹⁴¹ See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994) (concluding that the plaintiff established harassment was subjectively hostile where, among other things, she told a friend about the conduct and then complained to her supervisor after learning from the friend that she had some legal recourse).

¹⁴² See EEOC v. Prospect Airport Servs., 621 F.3d 991, 997-98 (9th Cir. 2011) (explaining that whether the male complainant welcomed his female coworker’s sexual propositions depended on his “individual circumstances and feelings” and that it did not matter whether other men would have welcomed the propositions).

¹⁴³ See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (explaining that the correct inquiry is whether the complainant experienced the conduct as unwelcome, not whether she voluntarily participated in it); Kramer v. Wasatch Cnty. Sheriff’s Off., 743 F.3d 726, 754-55 (10th Cir. 2014) (concluding that the issue of whether sexual conduct was unwelcome was a matter for the jury to decide, regardless of whether the plaintiff’s participation in it was voluntary).

¹⁴⁴ See, e.g., Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1047-48 (8th Cir. 2005) (concluding that the complainant failed to establish a prima facie case of sexual harassment where she stated that she did not feel harassed by the conduct); Newman v. Fed. Express Corp., 266 F.3d 401, 405-06 (6th Cir. 2001) (concluding that the plaintiff did not subjectively perceive conduct as hostile where he testified during a deposition that he did not consider a racially charged hate letter a “big deal,” that he was not surprised, shocked, or disturbed by it, and that he would lose no sleep over it).

¹⁴⁵ See, e.g., Williams v. Herron, 687 F.3d 971, 975 (8th Cir. 2012) (concluding that the complainant adequately communicated to the harasser, with whom she had been having a sexual relationship, that his conduct was no longer welcome).

¹⁴⁶ Cf. Kramer, 743 F.3d at 749 n.16 (stating that the complainant’s private consensual sexual relationship with another county employee was unrelated to her claim of sexual harassment by the sergeant).

¹⁴⁷ See Gerald v. Univ. of P.R., 707 F.3d 7, 17 (1st Cir. 2013) (stating that telling risqué jokes did not signal that the plaintiff was amenable to being groped at work); Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 28 (1st Cir. 2011) (stating that acquiescence to a customary greeting among employees—a kiss on the cheek—was not probative of the complainant’s receptiveness to his supervisor’s sucking on his neck).

¹⁴⁸ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Hall v. City of Chi., 713 F.3d 325, 330 (7th Cir. 2013) (stating that harassment is actionable if it is severe or pervasive and that, thus, “one extremely serious act of harassment could rise to an actionable level as could a series of less severe acts” (quoting Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001))).

¹⁴⁹ See, e.g., Alamo v. Bliss, 864 F.3d 541, 550 (7th Cir. 2017) (explaining that in determining whether offensive language created a hostile work environment, the court “look[s] to the ‘pervasiveness and severity’ of language used, which [the court has] described as being ‘inversely related’” (quoting Cerros v. Steel Techs., Inc., 398 F.3d 944, 951 (7th Cir. 2005))); Flood v. Bank of Am. Corp., 780 F.3d 1, 11-12 (1st Cir. 2015) (explaining that harassment may be actionable without being both severe and pervasive and that the “severity . . . may vary inversely with its pervasiveness” (quoting Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 976 (Me. 1996))); EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 1000 (9th Cir. 2010) (stating that the “required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct” (quoting Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001))).

¹⁵⁰ Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (“Within the totality of circumstances, 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.”); see also Harris, 510 U.S. at 22 (explaining that the determination of whether harassment creates a hostile work environment “is not, and by its very nature cannot be, a mathematically precise test”).

¹⁵¹ A hostile work environment may be so intolerable that an employee is compelled to resign employment. Under these circumstances, the employee is said to have been subjected to a constructive discharge. Pa. State Police v. Suders, 542 U.S. 129, 134 (2004). To establish a constructive discharge claim under such circumstances, the employee must both establish a hostile work environment and show that “working conditions [became] so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Id. at 141; see also id. at 149 (“Creation of a hostile work environment is a necessary predicate to a hostile-environment constructive discharge case.”); Green v. Brennan, 578 U.S. 547, 559 (2016) (observing that Suders’s holding that a hostile work environment claim is a “lesser included component” of the “graver claim” of constructive discharge was “no mere dictum” (emphasis omitted)). “[H]arassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts.” Suders, 542 U.S. at 148.

¹⁵² See, e.g., Harris, 510 U.S. at 23 (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”).

¹⁵³ Id.

¹⁵⁴ See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic 28 (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf.

¹⁵⁵ Harris, 510 U.S. at 23.

¹⁵⁶ EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400-01 (5th Cir. 2007) (concluding that the evidence was sufficient to show that harassment based on an employee’s Muslim faith and national origin (Indian) resulted in a hostile work environment); see also Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335-36 (4th Cir. 2010) (concluding that race-based conduct could be considered cumulatively with sex-based conduct, which would allow a reasonable jury to find that the plaintiff was subjected to a hostile work environment); Hafford v. Seidner, 183 F.3d 506, 515-16 (6th Cir. 1999) (“It would not be right to require a judgment against Hafford if the sum of all of the harassment he experienced was abusive, but the incidents could be separated into several categories, with no one category containing enough incidents to amount to ‘pervasive’ harassment.”).

Refer to section III.C.1 for a discussion of how to determine whether conduct is sufficiently related to be considered part of the same hostile work environment claim.

¹⁵⁷ See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416-17 (10th Cir. 1987) (determining that although the plaintiff’s evidence of a race-based hostile work environment was insufficient to establish a hostile work environment, this evidence should be considered with the plaintiff’s evidence of sexual harassment “to determine whether there was a pervasive discriminatory atmosphere . . . so that a hostile work environment harassment claim may have been established”); cf. Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 (2d Cir. 2000) (stating that the “interplay between the two forms of harassment” alleged by the plaintiff could lead a jury to conclude that the “racial harassment exacerbated the effect of [the] sexually threatening behavior and vice versa”).

¹⁵⁸ See, e.g., Petrosino v. Bell Atl., 385 F.3d 210, 215 (2d Cir. 2004) (reversing summary judgment for the employer where the hostile work environment included disparaging remarks about the plaintiff’s menstrual cycle, including “dismissing her job concerns as attributable to her menstrual cycle (‘He accused me several times of being ‘on the rag’ . . . whenever I had a dispute with him . . . .”) (internal citation omitted)).

¹⁵⁹ This example is adapted from the facts in Preuss v. Kolmar Labs., Inc., 970 F. Supp. 2d 171 (S.D.N.Y. 2013).

¹⁶⁰ Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (reiterating that that an employer’s sexually demeaning behavior alters the terms or conditions of employment in violation of Title VII if it is severe or pervasive); see also Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202, 1231 (10th Cir. 2022) (stating that if “the condition of Ford’s employment was altered for the worse” because of the alleged sexual harassment, then the fact that she “continued to proceed through the ranks” provided “no reason” for the court to dismiss her hostile work environment claim); EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 330 (4th Cir. 2010) (stating that the issue is not whether work has been impaired but whether the work environment has been discriminatorily altered and that the “fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s”); Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009) (concluding that the district court erred in requiring evidence that the complainant’s work performance suffered measurably as a result of harassment rather than merely evidence that harassment made it more difficult to do the job); Dawson v. Cnty. of Westchester, 373 F.3d 265, 274 (2d Cir. 2004) (stating that the crucial question is “whether the workplace atmosphere, considered as a whole, undermined plaintiffs’ ability to perform their jobs, compromising their status as equals to men in the workplace”).

¹⁶¹ Harris, 510 U.S. at 22-23 (explaining that “Title VII comes into play before the harassing conduct leads to a nervous breakdown” as “[a] discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance”).

¹⁶² This example is adapted from the facts in Gallagher, 567 F.3d at 266-69.

¹⁶³ Ellerth, 524 U.S. at 763; Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264, 278 (4th Cir. 2015) (en banc) (quoting Ellerth, 524 U.S. at 763); see also Copeland v. Ga. Dep’t of Corr., ___ F.4th ___, No. 22-13073, 2024 WL 1316677, at *7 (11th Cir. Mar. 28, 2024) (noting that harassment is “more severe when it involvesparticipation of supervisors rather than solely peers or subordinates”).

¹⁶⁴ See Gates v. Bd. of Educ., 916 F.3d 631, 638 (7th Cir. 2019) (stating that the circuit has “repeatedly treated a supervisor’s use of racially toxic language in the workplace as much more serious than a coworker’s”); Zetwick v. Cnty. of Yolo, 850 F.3d 436, 445 (9th Cir. 2017) (concluding that a reasonable jury could find that the alleged sexual harassment was actionable, in part, because of the harasser’s status as a supervisor); Steck v. Francis, 365 F. Supp. 2d 951, 971-72 (N.D. Iowa 2005) (stating that a supervisor’s agency relation increases the impact of harassment by the supervisor); see also Fairbrook Med. Clinic, P.A., 609 F.3d at 329 (stating that the severity of the harasser’s conduct was exacerbated by his significant authority over the complainant); Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (stating that a supervisor’s use of the word “n****r” has a more severe impact on the work environment than its use by coworkers); cf. Chapman v. Oakland Living Ctr., Inc., 48 F.4th 222, 231 (4th Cir. 2022) (stating that although the repeated use of the n-word was by a six-year-old, “the boy who uttered the slurs was not just any ‘young child,’ but the grandson of OLC’s owners and the son of a supervisor being groomed to take over the family business . . . and [t]hus, a reasonable person in Chapman’s position could ‘fear that the child had his relative’s ear and could make life difficult for her’” (citation omitted)).

¹⁶⁵ See Boyer-Liberto, 786 F.3d at 279-80 (explaining that, regardless of whether the harasser was the complainant’s supervisor for purposes of employer vicarious liability, the determination of objective severity required the court to consider how the harasser portrayed the harasser’s authority and what the complainant reasonably believed the harasser’s actual power to be).

¹⁶⁶ See, e.g., Warf v. U.S. Dep’t of Veterans Affs., 713 F.3d 874, 878 (6th Cir. 2013) (“Evidence of other sexual harassment claims may help support a hostile work environment claim, but evidence of harassment to others does not weigh as heavily as evidence directed against the plaintiff.”); Ziskie v. Mineta, 547 F.3d 220, 224-25 (4th Cir. 2008) (stating that conduct personally experienced by the plaintiff may be more probative of a hostile work environment than conduct she did not witness, but all the evidence should be considered: “[h]ostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment”); see also infra notes 212-216 and accompanying text.

¹⁶⁷ See, e.g., Copeland, 2024 WL 1316677, at *8 (stating that the intentional misgendering and other harassment that a male transgender correctional officer experienced was humiliating where it occurred over the prison radio system, which allowed the whole institution to hear); Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (concluding that a fire lieutenant could establish a hostile work environment based on a single incident in which a coworker loudly made obscene and sexist comments at a meeting where the lieutenant was the only woman and many of the men were her subordinates); Delozier v. Bradley Cnty. Bd. of Educ., 44 F. Supp. 3d 748, 759 (E.D. Tenn. 2014) (concluding that a male band leader’s sexual comments about a female assistant band leader were sufficient to create a hostile work environment where they were made in front of the assistant band leader’s students, thereby undermining her authority and stature in her students’ eyes); Hanna v. Boys & Girls Home & Fam. Servs., Inc., 212 F. Supp. 2d 1049, 1061 (N.D. Iowa 2002) (noting the significance of the fact that sexually harassing conduct was directed at the female complainant in the presence of male clients).

¹⁶⁸ See, e.g., Jenkins v. Univ. of Minn., 838 F.3d 938, 945-46 (8th Cir. 2016) (“Actions that might not rise to the level of severe or pervasive in an office setting take on a different character when the two people involved are stuck together for twenty-four hours a day with no other people—or means of escape—for miles around.”).

¹⁶⁹ See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic 24-25 (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf (discussing “superstar” harassers).

¹⁷⁰ See, e.g., Lapka v. Chertoff, 517 F.3d 974, 982-84 (7th Cir. 2008) (concluding that, in the case of a complainant who alleged that her coworker raped her, the severity of the sexual assault alleged would be sufficient to establish an objectively hostile work environment).

¹⁷¹ See, e.g., Turner v. Saloon, Ltd., 595 F.3d 679, 686 (7th Cir. 2010) (concluding that the plaintiff’s claim that his female supervisor grabbed his penis through his pockets was probably severe enough on its own to create a genuine issue of material fact as to the plaintiff’s sexual harassment claim).

¹⁷² See, e.g., Banks v. Gen. Motors, LLC, 81 F.4th 242, 263-64 (2d Cir. 2023) (concluding that a reasonable jury could find that the plaintiff was subjected to unlawful harassment based on race and sex when a colleague “shook a rolled-up document in her face and started yelling at her in a loud and aggressive manner,” alarming other employees, and leading her to take disability leave); Patterson v. Cnty. of Oneida, 375 F.3d 206, 230 (2d Cir. 2004) (concluding that a hostile work environment based on race could be established by a single incident in which the plaintiff was allegedly punched in the ribs and temporarily blinded by having mace sprayed in his eyes because of his race); Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999) (concluding that harassing a female employee based on her sex by damaging her wrist to the point that surgery was required “easily qualifies as a severe enough isolated occurrence to alter the conditions of her employment”); cf. Pryor v. United Air Lines, Inc., 791 F.3d 488, 496-97 (4th Cir. 2015) (concluding that a reasonable jury could find that two anonymous notes placed in the plaintiff’s mailbox, although not pervasive, were sufficiently severe to create hostile work environment where the notes referred to lynching and were in the form of a mock hunting license for African Americans).

¹⁷³ E.g., Tademy v. Union Pac. Corp., 614 F.3d 1132, 1145 (10th Cir. 2008) (concluding that a “jury could easily find that the noose was an egregious act of discrimination calculated to intimidate African-Americans”); Rosemond v. Stop & Shop Supermarket Co., 456 F. Supp. 2d 204, 213 (D. Mass. 2006) (holding that a reasonable jury could conclude that display of a noose in an African American employee’s work area was sufficient to create a hostile work environment); Williams v. N.Y.C. Hous. Auth., 154 F. Supp. 2d 820, 824 (S.D.N.Y. 2001) (stating that a “noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence” and that the “effect of such violence on the psyche of African-Americans cannot be exaggerated”); Yudovich v. Stone, 839 F. Supp. 382, 391 (E.D. Va. 1993) (finding that one of the plaintiffs’ supervisors expressed hostility toward the plaintiffs’ religion by, among other things, keeping a coffee mug displaying a swastika on his desk).

¹⁷⁴ See, e.g., Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (stating that calling an African American employee “porch monkey” was “about as odious as the use of the word ‘n****r’”); Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 611, 613 (5th Cir. 2015) (concluding that although the alleged harassment was brief as it had occurred over only two days, a jury could find that it was sufficiently severe to create a hostile work environment where, among other things, African American employees were compared to gorillas); see also Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (agreeing with the plaintiff that using the term “monkey” to refer to African Americans was “roughly equivalent” to using the term “n****r”); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (stating that use of “monkey” to describe African Americans was “degrading and humiliating in the extreme”).

¹⁷⁵ In Burlington Industries, Inc. v. Ellerth, the Court explained that unfulfilled threats are actionable if they create a hostile work environment. 524 U.S. 742, 754 (1998). A sufficiently serious threat, even if unfulfilled, could meet the necessary level of severity. See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 607 (2d Cir. 2006) (“Threats or insinuations that employment benefits will be denied based on sexual favors are, in most circumstances, quintessential grounds for sexual harassment claims, and their characterization as ‘occasional’ will not necessarily exempt them from the scope of Title VII.”); Jansen v. Packaging Corp. of Am., 123 F.3d 490, 500 (7th Cir. 1997) (en banc) (Flaum, J., concurring) (stating that a supervisor’s unambiguous communication that an adverse job action will follow if sexual favors are denied may cause “real emotional strife,” including “anxiety, distress, and loss of productivity regardless of whether the threat is carried out”).

¹⁷⁶ See Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022) (“The incident Woods has pleaded—that his supervisor directly called him a ‘Lazy Monkey A__ N___’ in front of his fellow employees—states an actionable claim of hostile work environment.”); Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017); Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly ‘alter the conditions of employment . . .’ than the use of an unambiguously racial epithet such as ‘n****r’ by a supervisor in the presence of his subordinates.” (citation omitted)); see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“[I]n my view, being called the n-word by a supervisor . . . suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that ‘sums up . . . all the bitter years of insult and struggle in America,’ ‘pure anathema to African-Americans,’ and ‘probably the most offensive word in English.’” (citations omitted)).

¹⁷⁷ Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 965 (8th Cir. 1993) (quoting Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983)); see also, e.g., Johnson v. PRIDE Indus., 7 F.4th 392, 403-04 (5th Cir. 2021) (holding that the plaintiff could establish a hostile work environment based on harassment that included the use of “mayate,” which the plaintiff knew was Spanish for the n-word, by a fellow employee who outranked him); Passananti v. Cook Cnty., 689 F.3d 655, 665 (7th Cir. 2012) (“A raft of case law . . . establishes that the use of sexually degrading, gender-specific epithets, such as ‘sl*t,’ ‘c*nt,’ ‘wh*re,’ and ‘b*tch,’ . . . has been consistently held to constitute harassment based upon sex.” (quoting Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229-30 (1st Cir. 2007))); Hawkins v. City of Phila., 571 F. Supp. 3d 455, 464 (E.D. Pa. 2021) (“The term ‘f***ot’ is so replete with homophobic animus that, if used, instantly separates an individual who identifies as gay from everyone else in the workplace.”); Johnson v. Earth Angels, 125 F. Supp. 3d 562, 569 (M.D.N.C. 2015) (stating that racial epithets used by supervisors went “far beyond the merely unflattering” and were “degrading and humiliating in the extreme” (quoting Boyer-Liberto, 786 F.3d at 280)).

¹⁷⁸ See, e.g., Zetwick v. Cnty. of Yolo, 850 F.3d 436, 439, 442-46 (9th Cir. 2017) (concluding that a reasonable jury could find that the plaintiff was subjected to a hostile work environment where her supervisor greeted her with “at least a hundred” “unwelcome hugs and at least one unwelcome kiss” over a twelve-year period); Hall v. City of Chi., 713 F.3d 325, 332 (7th Cir. 2013) (“[I]ncidents, which viewed in isolation seem relatively minor, that consistently or systematically burden women throughout their employment are sufficiently pervasive to make out a [sex-based] hostile work environment claim.”); EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 998-1001 (9th Cir. 2010) (determining that a genuine issue of material fact existed as to the abusiveness of the complainant’s work environment where, after the complainant twice rejected his coworker’s advances, this coworker and other coworkers subjected the complainant to six months of constant sexual pressure and humiliation); Lauderdale v. Tex. Dep’t of Crim. Just., 512 F.3d 157, 163-64 (5th Cir. 2007) (concluding that a reasonable jury could find that the supervisor engaged in “pervasive harassment” where, among other things, he called the plaintiff “ten to fifteen times a night for almost four months”).

¹⁷⁹ See supra note 150 and accompanying text.

¹⁸⁰ See, e.g., Rodgers, 12 F.3d at 674 (stating that liability is evaluated “on a case-by-case basis after considering the totality of the circumstances” (quoting Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380-81 (7th Cir. 1986))); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010) (stating that “flexibility is useful in a context as fact-specific and sensitive as employment discrimination and as amorphous as hostile work environment”).

¹⁸¹ See, e.g., El-Hakem v. BJY, Inc., 415 F.3d 1068, 1073-74 (9th Cir. 2005) (upholding jury verdict for the plaintiff, noting that the CEO’s intentional and repeated use of a “Westernized” version of the plaintiff’s name, despite his objections, may not have been severe but was frequent and pervasive).

¹⁸² See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010) (concluding that, given the short time frame and number of incidents involved, the plaintiff established a genuine issue as to whether she was subjected to a hostile work environment).

¹⁸³ This example is adapted from the facts in EEOC v. Prospect Airport Services, Inc., 621 F.3d 991 (9th Cir. 2010).

¹⁸⁴ This example is adapted from the facts in Broderick v. Ruder, 685 F. Supp. 1269, 1278 (D.D.C. 1988) (holding that the plaintiff stated a prima facie case of sexual harassment based on evidence that managers harassed female employees by bestowing preferential treatment on those who submitted to sexual advances).

¹⁸⁵ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

¹⁸⁶ Id. at 81-82; see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (en banc) (stating that the analysis requires proceeding with “‘[c]ommon sense, and an appropriate sensitivity to social context,’ to distinguish between general office vulgarity and the ‘conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive’” (quoting Oncale, 523 U.S. at 82)); Hood v. Nat’l R.R. Passenger Corp., 72 F. Supp. 3d 888, 893 (N.D. Ill. 2014) (stating that the joking manner in which the challenged comments were made was a relevant consideration in evaluating the severity of Hispanic employees’ use of “gringo” to refer to the White complainant).

¹⁸⁷ Oncale, 523 U.S. at 82.

¹⁸⁸ See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) (“Racially motivated comments or actions may appear innocent or only mildly offensive to one who is not a member of the targeted group, but in reality be intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group. . . . By considering both the existence and the severity of discrimination from the perspective of a reasonable person of the plaintiff’s race, we recognize forms of discrimination that are real and hurtful, and yet may be overlooked if considered solely from the perspective of an adjudicator belonging to a different group than the plaintiff.”); see also Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (stating that a hostile work environment requires evidence establishing that the harassment would have adversely affected a reasonable person of the same protected class in the plaintiff’s position), abrogated on other grounds by Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006); Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 321 (2d Cir. 1999) (Newman, J., concurring in part and dissenting in part) (noting that the failure to adopt the perspective of the complainant’s protected class might result in applying the stereotypical views that Title VII was designed to outlaw); Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997) (evaluating the sexual harassment claim of a female plaintiff from the viewpoint of a “reasonable woman”); cf. Baugham v. Battered Women, Inc., 211 F. App’x 432, 438 (6th Cir. 2006) (stating that the severity of harassment is evaluated from the “perspective of a reasonable person in the employee’s shoes, considering the totality of the circumstances” (citing Oncale, 523 U.S. at 81)).

¹⁸⁹ See McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 85 (2d Cir. 2010) (Calabresi, J., concurring) (stating that the female complainant could base her hostile work environment claim on sexually derogatory conduct that was the product of locker room culture that some other women participated in); Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 272 n.2 (6th Cir. 2009) (concluding that the plaintiff established that she experienced sex-based harassment, even though some women participated in the conduct); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 886 (D. Minn. 1993) (concluding that expert testimony and testimony of female mine workers established that the work environment affected the psychological well-being of a reasonable woman working there, and this conclusion was not affected by the fact that some women did not find the work environment objectionable); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1525 (M.D. Fla. 1991) (stating that the fact that some women did not find the conduct offensive did not mean that the conduct was not objectively hostile).

¹⁹⁰ Jenkins v. Univ. of Minn., 838 F.3d 938, 946 (8th Cir. 2016) (doctoral candidate’s physical well-being in a remote location and academic future was dependent on a leading expert in the candidate’s field of study who harassed her on a research trip).

¹⁹¹ See EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 429, 433 (7th Cir. 2012) (stating that the ten-year age disparity between the teenage complainant and the older harasser, coupled with his authority over her, could have led a rational jury to conclude that the harassment resulted in a hostile work environment).

¹⁹² Cf. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064-65 (9th Cir. 2004) (“While documented workers face the possibility of retaliatory discharge for an assertion of their labor and civil rights, undocumented workers confront the harsher reality that, in addition to possible discharge, their employer will likely report them to [immigration authorities] and they will be subjected to deportation proceedings or criminal prosecution. . . . As a result, most undocumented workers are reluctant to report abusive or discriminatory employment practices.”).

¹⁹³ Prettyman v. LTF Club Opers. Co., No. 1:18-cv-122, 2018 WL 5980512, at *6 (E.D. Va. Nov. 13, 2018) (“Much of this historical antipathy toward Jews was grounded in economic antisemitism, which makes comments about ‘Jewish money’ all the more objectionable and offensive. These words and phrases about Jews, like the n-word, are so serious and severe that they instantly signal to an employee that he or she is unwelcome in the work place because of his or her religion.”).

¹⁹⁴ See EEOC v. Glob. Horizons, Inc., 7 F. Supp. 3d 1053, 1061 (D. Haw. 2014) (threats of deportation contributed to a hostile work environment); Chellen v. John Pickle Co., Inc., 446 F. Supp. 2d 1247, 1265 (N.D. Okla. 2006) (“The threat of deportation was especially significant in defendants’ creation of a hostile working environment. The Chellen plaintiffs feared . . . the harm he could inflict on [them] or their families if they were made to return to India.”).

¹⁹⁵ This example is adapted from the facts in Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115 (E.D. Pa. 2020).

¹⁹⁶ See, e.g., Copeland v. Ga. Dep’t of Corr., ___ F.4th ___, No. 22-13073, 2024 WL 1316677, at *8 (11th Cir. Mar. 28, 2024) (concluding that working as a corrections officer, which is a “dangerous and sometimes” violent context, made the intentional misgendering and other harassment that a transgender male correctional officer experienced more severe than it would have been in other contexts); Jenkins v. Univ. of Minn., 838 F.3d 938, 946 (8th Cir. 2016) (concluding that the alleged harassment was sufficient to establish a hostile work environment where, among other things, the plaintiff and the alleged harasser worked in a remote region where they had been dropped by plane).

¹⁹⁷ See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008) (rejecting the district court’s suggestion that harassment might be discounted in an environment that was “inherently coarse”; “Title VII contains no such ‘crude environment’ exception, and to read one into it might vitiate statutory safeguards for those who need them most”); see also Reeves v. C.H. Robinson Worldwide, 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (stating that a “member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct”); Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999) (“[W]e squarely denounce the notion that the increasing regularity of racial slurs and graffiti renders such conduct acceptable, normal, or part of ‘conventional conditions on the factory floor.’”); Vollmar v. SPS Techs., LLC, No. 15-2087, 2016 WL 7034696, at *6 (E.D. Pa. Dec. 2, 2016) (concluding that even in a work environment in which foul language and joking are commonplace, the employer can be liable for fostering a hostile work environment for female employees).

¹⁹⁸ Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999); see also Reeves, 594 F.3d at 803, 812-13 (holding that the plaintiff, the only woman working on the sales floor, could establish a sexually hostile work environment based on vulgar, sex-based conduct, even though the conduct had begun before she entered the workplace); Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999) (“We do not believe that a woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment . . . .”); Rabidue v. Osceola Refining Co., 805 F.2d 611, 626 (6th Cir. 1986) (Keith, J., concurring in part, dissenting in part) (stating that a female employee should not have to assume the risk of a hostile work environment by voluntarily entering a workplace in which sexual conduct abounds); Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982) (rejecting the contention that racial epithets that were common in the defendant’s industry could not establish a hostile work environment based on race).

¹⁹⁹ See, e.g., Reeves, 594 F.3d at 811-12 (concluding that a reasonable jury could find that the conduct in the plaintiff’s office, including use of the terms “wh*re,” “b*tch,” and “c*nt,; vulgar discussions of women’s body parts; and the pornographic image of a woman in the office, contributed to conditions that were humiliating and degrading to women on account of their sex and thus could have created an abusive working environment).

²⁰⁰ Although evidence of unwelcomeness may be relevant, the Commission does not believe that a plaintiff needs to prove “unwelcomeness” as a separate element of the prima facie case. See supra section III.B.1.

²⁰¹ Compare Souther v. Posen Constr., Inc., 523 F. App’x 352, 355 (6th Cir. 2013) (concluding that a jury could not find that the alleged harasser’s sexual advances were unwelcome where, among other things, the plaintiff and alleged harasser were engaged in an on-and-off sexual relationship for five years, she never complained to the alleged harasser or anyone else that his conduct was unwelcome, and the plaintiff and alleged harasser remained friends during the period when the affair was dormant), with Williams v. Herron, 687 F.3d 971, 975 (8th Cir. 2012) (concluding that a correctional officer presented sufficient evidence to show that she adequately communicated to the chief deputy that his conduct was unwelcome where she told him that she was uncomfortable continuing their relationship and that she was concerned that she would lose her job if she ended their relationship, given that she knew that other female employees were fired after ending their relationships with him), Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 28 (1st Cir. 2011) (concluding that the plaintiff established that his supervisor’s conduct was unwelcome where, among other things, the plaintiff twice unequivocally rejected his supervisor’s sexual propositions), and EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 998 (9th Cir. 2010) (concluding that the plaintiff established a fact issue regarding whether conduct was unwelcome where he repeatedly told his coworker, “I’m not interested,” yet she continued to make sexual overtures).

²⁰² See Webb-Edwards v. Orange Cnty. Sheriff’s Off., 525 F.3d 1013, 1027-28 (11th Cir. 2008) (concluding that the plaintiff failed to demonstrate that the harasser’s conduct was severe or pervasive, in part because the conduct ended after the plaintiff told the harasser that it made her uncomfortable); Shanoff v. Ill. Dep’t of Hum. Servs., 258 F.3d 696, 704 (7th Cir. 2001) (stating that repeated harassment that continues despite an employee’s objections is indicative of a hostile work environment); Moore v. Pool Corp., 304 F. Supp. 3d 1148, 1160 (N.D. Ala. 2018) (concluding that a jury could conclude that alleged racial harassment by a customer was objectively hostile, where the customer not only called the plaintiff a “n****r” five to seven times a year over several years, but the customer continued the harassment even after the plaintiff objected and asked the customer to stop using the racial epithet).

²⁰³ See, e.g., Christian v. Umpqua Bank, 984 F.3d 801, 806-07, 811 (9th Cir. 2020) (concluding that the evidence created a triable issue as to whether a customer’s harassment of the complainant was sufficiently severe or pervasive where the customer persisted in asking the complainant on dates, sending her notes and letters, and repeatedly “pester[ing] her” for months after the complainant asked him to stop).

²⁰⁴ See EEOC, Compliance Manual Section 12: Religious Discrimination § 12‑III.B.2.b (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#_Toc203359509; Venters v. City of Delphi, 123 F.3d 956, 976 (7th Cir. 1997) (concluding that a reasonable person in the plaintiff’s position could have found the work environment hostile where the supervisor’s remarks were uninvited, intrusive, and continued even after the employee informed her supervisor that his comments were inappropriate).

²⁰⁵ See Garcimonde-Fisher v. Area203 Mktg., LLC, 105 F. Supp. 3d 825, 840 (E.D. Tenn. 2015) (“The references to the King James Bible as the proper Bible and to Catholicism as not the ‘right kind’ of Christianity could fairly be described as derogatory. While these comments may not be as overtly hostile as depicting a coworker as a satanic figure, they do serve to reinforce the omnipresent message of the workplace that [one] religion is the only religion that will be tolerated.”).

²⁰⁶ Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002) (explaining that because a hostile work environment is a single unlawful employment action, a court should not separate individual acts that are part of the broader claim when analyzing timeliness or liability).

²⁰⁷ Morgan, 536 U.S. at 120. Compare Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202, 1228-29 (10th Cir. 2022) (holding that a pre-filing-period incident in which a manager had engaged in sexually suggestive conduct with a vodka bottle was part of the same hostile work environment as subsequent conduct by other workers that demonstrated “the same type of sex-based hostility that [the plaintiff] ha[d] repeatedly complained of”), Maliniak v. City of Tucson, 607 F. App’x 626, 628 (9th Cir. 2015) (concluding that an offensive sign posted within the 300-day charge-filing time period was sufficiently related to the offensive signs that pre-dated the charge-filing period to be considered part of the same actionable hostile work environment claim, where both sets of signs denigrated women), Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165-67 (3d Cir. 2013) (concluding that the plaintiff could proceed with her hostile work environment claim under Morgan’s single unlawful employment practice theory where at least one incident—being called a “b*tch” during a meeting—occurred within the charge-filing period and many of the acts that fell outside the filing period involved similar conduct by the same individuals), and EEOC v. Fred Meyer Stores, Inc., 954 F. Supp. 2d 1104, 1121-23 (D. Or. 2013) (concluding that sexual harassment of a retail store employee by a customer that occurred before the employee’s six-month absence could be considered along with harassment that occurred after she returned in determining whether she was subjected to a hostile work environment, where the conduct involved the same customer engaging in similar physical harassment before and after the employee’s absence from the workplace, and despite the employee’s complaint, the harasser was allowed to continue frequenting the store before he sexually harassed her again), with Martinez v. Sw. Cheese Co., LLC, 618 F. App’x 349, 354 (10th Cir. 2015) (holding that pre-filing period conduct was not sufficiently related to filing period conduct so as to be part of the same hostile work environment where it did not involve the same type of conduct, it occurred infrequently, and it involved different harassers), and Lucas v. Chi. Transit Auth., 367 F.3d 714, 727 (7th Cir. 2004) (holding that an incident that occurred within the charge-filing time period was not part of the same hostile work environment as the earlier incidents where there was a three-year gap and the last incident involved a chance encounter on a commuter train).

²⁰⁸ See Morgan, 536 U.S. at 120-21 (affirming lower court’s ruling that acts were part of the same actionable hostile environment claim where they involved “the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers”); see also McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010) (stating that “Morgan requires courts to make an individualized assessment of whether incidents and episodes are related” without limiting the relevant criteria or imposing particular factors, and stating that “[t]his flexibility is useful in a context as fact-specific and sensitive as employment discrimination and as amorphous as hostile work environment”).

²⁰⁹ See King v. Aramark Servs., Inc., 96 F.4th 546, 561 (2d Cir. 2024) (“A discrete discriminatory act, such as termination, within the limitations period may not only support a claim for damages, it may also render a hostile work environment claim timely if it is shown to be part of the course of discriminatory conduct that underlies the hostile work environment claim.” (emphasis in original)); Baird v. Gotbaum, 662 F.3d 1246, 1251-52 (D.C. Cir. 2011) (holding that the district court erred in concluding that the plaintiff’s hostile work environment claim could not include discrete acts that also were actionable on their own); Chambless v. La.-Pac. Corp., 481 F.3d 1345, 1350 (11th Cir. 2007) (concluding that, although a timely discrete act can provide a basis for considering untimely, non-discrete acts as part of the same hostile work environment claim, the timely failure to promote and retaliation were not sufficiently similar to untimely allegations so as to be part of the same hostile work environment claim); Royal v. Potter, 416 F. Supp. 2d 442, 453-54 (S.D. W. Va. 2006) (concluding that the plaintiff’s actionable hostile work environment claim included termination of a temporary position and failure to promote). But see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 892-93 (9th Cir. 2005) (stating that timely acts offered in support of a hostile work environment claim must be non-discrete acts because basing a hostile work environment claim on timely discrete and untimely non-discrete acts would “blur to the point of oblivion the dichotomy between discrete acts and a hostile environment”).

As discussed in the EEOC’s Compliance Manual section on threshold issues: “[A] discrete act of discrimination [an official act that is independently actionable] may be part of a hostile work environment only if it is related to abusive conduct or language, i.e., a pattern of discriminatory intimidation, ridicule, and insult. A discrete act that is unrelated to abusive conduct or language ordinarily would not support a hostile work environment claim.” EEOC, Compliance Manual Section 2: Threshold Issues § 2-IV.C.1.b (2009), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues#2-IV-C-1-bhttps://www.eeoc.gov/policy/docs/threshold.html#2-IV-C-1-b; see also Bearer v. Teva Pharms. USA, Inc., No. 19-5415, 2021 WL 4145053, at *24 (E.D. Pa. Sept. 8, 2021) (stating that “failure to be promoted, without any indication that it is connected to hostile or abusive behavior, is simply not a form of harassment that can contribute to a hostile work environment”).

²¹⁰ This example is adapted from the facts in Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383, 385-87 (7th Cir. 2007).

²¹¹ This example is adapted from the facts in McGullam, 609 F.3d at 72-74.

²¹² See note 166 and accompanying text.

²¹³ See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 803, 811-12 (11th Cir. 2010) (en banc) (concluding that a jury could find that the conduct of male sales floor employee that was sex-specific, derogatory, and humiliating—including vulgar sexual comments, pornographic images of women, and sex-based epithets—created a hostile work environment for the complainant, who was the only woman on the sales floor, even though the conduct was not specifically directed at her); cf. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1523 (M.D. Fla. 1991) (stating that pornography “sexualizes the work environment to the detriment of all female employees”).

²¹⁴ See, e.g., Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144-46 (10th Cir. 2008) (holding that a reasonable jury could conclude that the plaintiff was subjected to a racially hostile work environment, which included anonymous bathroom graffiti and the display of a noose); see also Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 388-89 (2d Cir. 2020) (concluding that the complainant raised disputed issues of material fact as to whether a coworker’s comments about religion and the complainant’s national origin, which were not directed at the complainant but made to others in his presence, contributed to a hostile work environment).

²¹⁵ See, e.g., Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014) (concluding that the district court erred in evaluating the plaintiffs’ § 1981 and § 1983 racial harassment claims by examining in isolation harassment personally experienced by each plaintiff, rather than also considering conduct directed at others, where every plaintiff did not hear every remark but each plaintiff became aware of all of the conduct); Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1257-58 (11th Cir. 2014) (stating that employees could base their racial harassment claims on conduct that they were aware of); Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 335-36 (6th Cir. 2008) (concluding that evidence of a hostile work environment may include acts of harassment that the plaintiff becomes aware of during her employment that were directed at others and occurred outside her presence).

²¹⁶ This example is adapted from the facts in Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 670-72 (7th Cir. 1993).

²¹⁷ See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 177-78 (2011) (holding that Title VII does not merely authorize suit by someone who was allegedly discriminated against but instead more broadly authorizes suit by anyone who falls within the zone of interests protected by Title VII, meaning “any plaintiff with an interest ‘arguably [sought] to be protected by the statute’” (quoting Nat’l Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 495 (1998)); and further holding that, pursuant to that test, Thompson could bring a lawsuit alleging North American Stainless (NAS) fired him to retaliate against his fiancée, who had filed a sex discrimination charge against NAS, because “the purpose of Title VII is to protect employees from their employers’ unlawful actions[, and] injuring him was the employer’s intended means of harming [his fiancée]”); cf. Finn v. Kent Sec. Servs., Inc., 981 F. Supp. 2d 1293, 1300 (S.D. Fla. 2013) (concluding that a plaintiff might have standing to pursue a claim if the Defendant “required her, as part of her duties, to serve as the delivery vehicle of Defendant’s discrimination against other employees based on their race, sex, or color”).

²¹⁸ Sophie also could file an EEOC charge alleging that she was subjected to unlawful retaliation based on Jordan’s threats in response to her objection to the harassment. For more information on what constitutes unlawful retaliation, see EEOC, Enforcement Guidance on Retaliation and Related Issues § II.A.2 (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues#2._Opposition.

²¹⁹ See, e.g., Nichols v. Tri-Nat’l Logistics, Inc., 809 F.3d 981, 985-86 (8th Cir. 2016) (holding that the district court erred in analyzing a hostile work environment claim by the plaintiff, a truck driver, by excluding alleged sexual harassment of the plaintiff by her driving partner during a mandatory rest period); Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th Cir. 2002) (concluding that a potential client’s rape of a female manager at a business meeting outside her workplace was sufficient to establish a hostile work environment since having out-of-office meetings with potential clients was a job requirement); Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 135 (2d Cir. 2001) (concluding that the “work environment” included a short layover for flight attendants in a foreign country where the employer provided a block of hotel rooms and ground transportation).

²²⁰ See Lapka v. Chertoff, 517 F.3d 974, 979, 983 (7th Cir. 2008) (concluding that Title VII covered sexual harassment that occurred while attending employer-mandated training at an out-of-state training center).

²²¹ See Blakey v. Cont’l Airlines, Inc., 751 A.2d 538, 543 (N.J. 2000) (concluding that, although the electronic bulletin board did not have a physical location at the employee’s worksite, evidence might show it was so closely related to the workplace environment and beneficial to the employer that continuation of harassment on it should be regarded as occurring in the workplace).

²²² See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60 (1986) (noting that an employee had alleged harassment by her supervisor, which included conduct both inside and outside the workplace and conduct both during and after business hours).

²²³ See, e.g., Lapka, 517 F.3d at 983 (explaining that, to be actionable, harassment need only have consequences in the workplace); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 409-10 (1st Cir. 2002) (stating that the harasser’s intimidating conduct outside the workplace helped show why the complainant feared him and why his presence around her at work created a hostile work environment); Duggins v. Steak ‘n Shake, Inc., 3 F. App’x 302, 311 (6th Cir. 2001) (stating that an employee may reasonably perceive her work environment as hostile if forced to work for, or in close proximity to, someone who harassed her outside the workplace); cf. Andersen v. Rochester City Sch. Dist., 481 F. App’x 628, 630 (2d Cir. 2012) (concluding that alleged harassment of a teacher by a student outside of school did not create a hostile work environment where the student was not in the teacher’s class and they did not interact at school).

²²⁴ See, e.g., Strickland v. City of Detroit, 995 F.3d 495, 506-07 (6th Cir. 2021) (considering social media posts by police department personnel referring to Detroit residents as “garbage” and characterizing Black Lives Matter supporters as “racist terrorists” in assessing whether the plaintiff’s work environment was sufficiently racially hostile to be actionable); Fisher v. Mermaid Manor Home for Adults, LLC, 192 F. Supp. 3d 323, 326, 329 (E.D.N.Y. 2016) (determining that a reasonable jury could find that a coworker’s Instagram post, brought to the plaintiff’s attention by two other coworkers, which compared the plaintiff to a chimpanzee character in the Planet of the Apes movie, created a hostile work environment); Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008, 2014 WL 2647178, at *12 (June 6, 2014) (concluding that the complainant was subjected to sex-based harassment creating a hostile work environment, including by way of postings on the harasser’s personal website, which were announced during a training class at work and were viewed and discussed by many employees in the workplace); Knowlton v. Dep’t of Transp., EEOC Appeal No. 0120121642, 2012 WL 2356829, at *1-3 (June 15, 2012) (reversing dismissal of a harassment claim that included a race-related comment posted by a coworker on Facebook).

²²⁵ This example is adapted from the facts in Fisher, 192 F. Supp. 3d at 326-27.

²²⁶ See Abbt v. City of Hous., 28 F.4th 601, 609 (5th Cir. 2022) (concluding that a reasonable jury could find that the plaintiff, a firefighter, was subjected to a sex-based hostile work environment arising from her colleagues’ repeated viewing of a private, nude, intimate video that she had made for her husband).

²²⁷ See, e.g., EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 329 (4th Cir. 2010) (stating that the severity of the harasser’s conduct was exacerbated by his significant authority over the complainant).

²²⁸ See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-62 (1998) (noting “[a]s a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury”).

²²⁹ Id. at 759 (“Negligence sets a minimum standard for employer liability under Title VII.”).

²³⁰ Id. at 758 (stating that negligence and vicarious liability, as set forth in provisions of the Restatement (Second) of Agency, “are possible grounds for imposing employer liability on account of a supervisor’s acts and must be considered”); see also id. at 759 (“Thus, although a supervisor’s sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment.”); Debord v. Mercy Health Sys. of Kansas, Inc., 737 F.3d 642, 650-55 (10th Cir. 2013) (analyzing harassment by a supervisor under both negligence and vicarious liability standards); Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 421-22 (11th Cir. 1999) (same).

²³¹ Sharp v. City of Hous., 164 F.3d 923, 929 (5th Cir. 1999) (“The concept of negligence thus imposes a minimum standard for employer liability—direct liability—under title VII, a standard that is supplemented by the agency-based standards for vicarious liability as articulated in Faragher and [Ellerth].” (internal quotation marks and citation omitted)); Wilson v. Tulsa Junior Coll., 164 F.3d 534, 540 n.4 (10th Cir. 1998) (“The Supreme Court recognized in [Ellerth] and Faragher the continuing validity of negligence as a separate basis for employer liability.”).

²³² Although negligence and vicarious liability are distinct grounds for employer liability for unlawful harassment by a supervisor, both standards look at the reasonableness of the employer’s actions. The D.C. Circuit has explained: “While the reasonableness of an employer’s response to sexual harassment is at issue under both standards, the plaintiff must clear a higher hurdle under the negligence standard, where she bears the burden of establishing her employer’s negligence, than under the vicarious liability standard, where the burden shifts to the employer to prove its own reasonableness and the plaintiff’s negligence.” Curry v. D.C., 195 F.3d 654, 660 (D.C. Cir. 1999) (citing Shaw v. AutoZone, Inc.,180 F.3d 806, 812 n.2 (7th Cir. 1999)).

²³³ For a discussion of how to determine whether conduct is part of the same hostile work environment claim, refer to section III.C.1, supra.

²³⁴ See Williams v. Gen. Motors Corp., 187 F.3d 553, 562-63 (6th Cir. 1999); O’Rourke v. City of Providence, 235 F.3d 713, 736 (1st Cir. 2001).

²³⁵ See, e.g., O’Brien v. Middle E. Forum, 57 F.4th 110, 120 (3d Cir. 2023); Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 54 (2d Cir. 2012); Helm v. Kansas, 656 F.3d 1277, 1286 (10th Cir. 2011); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 383 (5th Cir. 2003); Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000).

²³⁶ See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 789-90 (1998) (citing circuit court decisions recognizing appropriateness of proxy liability for harassment by individuals occupying such positions); Townsend, 679 F.3d at 54 (recognizing that employer liability is appropriate for harassment by individuals occupying these positions); Johnson, 218 F.3d at 730 (same); see also O’Brien, 54 F.4th at 121 (“We recognize, of course, that ‘only individuals with exceptional authority and control within an organization can meet’ this standard.” (quoting Helm, 656 F.3d at 1286)).

²³⁷ See Harrison v. Eddy Potash, Inc., 158 F.3d 1371, 1376 (10th Cir. 1998) (stating that Faragher and Ellerth do not suggest that a supervisor can be considered the employer’s alter ego merely because he possesses a high degree of control over a subordinate); see also O’Brien, 57 F.4th at 121 (stating that “merely serving as a supervisor with some amount of control over a subordinate does not establish proxy status”); Townsend, 679 F.3d at 55-56 (concluding that a jury instruction was erroneous because it gave the misleading impression that mere status as a supervisor with power to hire and fire is sufficient to render the harasser the employer’s alter ego); Johnson, 218 F.3d at 730 (concluding that alter-ego liability did not apply where the supervisor was not a high-level manager whose actions spoke for the defendant).

²³⁸ Vance v. Ball State Univ., 570 U.S. 421, 424 (2013).

An employer cannot shield itself from liability by “concentrat[ing] all decisionmaking authority in a few individuals.” Id. at 446-47. As the Supreme Court has explained, when an employer attempts to “confine decisionmaking power to a small number of individuals,” those decisionmakers will likely still need to rely on input from “other workers who actually interact with the affected employee” and will have “a limited ability to exercise independent discretion when making decisions.” Id. at 447. Under those conditions, the employer has effectively delegated the authority to take tangible employment actions to the lower-level employees on whose input the formal decisionmakers must rely. Id. As a result, those lower-level employees will qualify as “supervisors.” See Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 265, 272 (1st Cir. 2014) (“As Vance recognizes, at some point the ability to provide advice and feedback may rise to the level of delegated authority sufficient to make someone a supervisor. . .”); see also Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 416 (6th Cir. 2021) (concluding that a reasonable jury could find that the harasser was the plaintiff’s supervisor where there were genuine issues about whether the plaintiff’s formal supervisor effectively delegated supervisory power to and relied on recommendations from the harasser); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (concluding that an individual whose recommendations “would be rubber-stamped” was the plaintiff’s supervisor).

²³⁹ Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998).

As the Supreme Court has explained, Ellerth invoked the “tangible employment action” concept “only to ‘identify a class of [hostile work environment] cases’ in which an employer should be held vicariously liable (without an affirmative defense) for the acts of supervisors.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (alteration in original) (quoting Ellerth, 524 U.S. at 760); see also Pa. State Police v. Suders, 542 U.S. 129, 143 (2004) (describing Ellerth and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), as delineating two categories of hostile work environment claims distinguished by the presence or absence of a tangible employment action). Ellerth does not address the scope of either Title VII’s general antidiscrimination provision or Title VII’s anti-retaliation provision. Burlington N., 548 U.S. at 65; see also Chambers v. District of Columbia, 35 F.4th 870, 875-76 (D.C. Cir. 2022) (en banc) (concluding that Ellerth did not provide grounds for an “objectively tangible harm” requirement under the general antidiscrimination provision).

²⁴⁰ E.g., Ellerth, 524 U.S. at 761; Faragher, 524 U.S. at 790.

²⁴¹ See Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 654-55 (5th Cir. 2002).

²⁴² Kramer v. Wasatch Cnty. Sheriff’s Off., 743 F.3d 726, 738 (10th Cir. 2014) (emphasis in original); id. at 741 (“Even if the [formal decision maker] undertook some independent analysis when considering employment decisions recommended by [the alleged harasser], [the alleged harasser] would qualify as a supervisor so long as his recommendations were among the proximate causes of the [formal decision maker’s] decision-making.” (emphasis in original)).

²⁴³ See Ellerth, 524 U.S. at 759 (“If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim’s mistaken conclusion must be a reasonable one.”); Llampallas v. Mini-Circuits Lab, Inc., 163 F.3d 1236, 1247 n.20 (11th Cir. 1998) (“Although the employer may argue that the employee had no actual authority to take the employment action against the plaintiff, apparent authority serves just as well to impute liability to the employer for the employee’s action.”). But see EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 685 (8th Cir. 2012) (stating that apparent authority is insufficient to establish supervisor status and the imposition of vicarious liability).

²⁴⁴ In Kramer v. Wasatch County Sheriff’s Off., the Tenth Circuit concluded that apparent-authority principles also might apply where an employer has vested an employee with some limited authority over the complainant and the complainant reasonably but mistakenly believes that the employee also has related powers, which, in some circumstances, might include the power to undertake or substantially influence tangible employment actions. 743 F.3d at 742-43.

²⁴⁵ See generally Kramer, 743 F.3d at 742 (“Apparent authority exists where an entity ‘has created such an appearance of things that it causes a third party reasonably and prudently to believe that a second party has the power to act on behalf of the first [party].’” (quoting Bridgeport Firemen’s Sick & Death Benefits Ass’n v. Deseret Fed. Sav. & Loan Ass’n, 735 F.2d 383, 388 (10th Cir. 1984))); see also Restatement (Third) of Agency § 2.03 (2006) (defining “apparent authority” as the “power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations”); id. § 3.03 (“Apparent authority, as defined in § 2.03, is created by a person’s manifestation that another has authority to act with legal consequences for the person who makes the manifestation, when a third party reasonably believes the actor to be authorized and the belief is traceable to the manifestation.”).

²⁴⁶ See, e.g., Dunn v. Wash. Cnty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005).

²⁴⁷ See, e.g., Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003).

²⁴⁸ See, e.g., Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1017 (9th Cir. 2018).

²⁴⁹ See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 914-15 (7th Cir. 2010).

²⁵⁰ See, e.g., EEOC v. Cromer Food Servs., Inc., 414 F. App’x 602, 606-07 (4th Cir. 2011) (collecting cases in which circuit courts have held employers may be liable for acts of harassment committed against employees by non-employees).

²⁵¹ An employer’s duty to take reasonable corrective action to prevent harassment from continuing is discussed supra at section IV.C.3.b.

²⁵² See Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998) (noting that employer liability for a hostile work environment has not been disputed when the harasser was “indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy”); O’Brien v. Middle E. Forum, 57 F.4th 110, 117 (3d Cir. 2023) (concluding that, pursuant to Faragher and Ellerth, the affirmative defense is unavailable when the individual who engaged in the alleged harassment was the employer’s proxy or alter ego); Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 52-53 (2d Cir. 2012) (same); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003) (same); Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (same).

²⁵³ As discussed in section IV.A, supra, an employer also may be liable for harassment by a supervisor pursuant to negligence principles.

²⁵⁴ Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998). A “tangible employment action” means a “significant change in employment status” that requires an “official act” of the employer. Id.; see also supra section IV.B.2 (discussing the definition of “tangible employment action”).

²⁵⁵ Ellerth, 524 U.S. at 761-62.

²⁵⁶ Id. at 762; see also id. at 762-63 (explaining that requirements of the “aided in the agency” relation standard “will always be met when a supervisor takes a tangible employment action against a subordinate”).

²⁵⁷ As discussed in section III.C.1, supra, a discriminatory employment practice that occurred within the charge-filing period may be independently actionable regardless of whether it is also part of a hostile work environment claim.

²⁵⁸ See Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998) (holding no affirmative defense is available where a supervisor’s harassment culminates in a tangible employment action and providing examples of non-career-ending tangible employment actions to include demotion and undesirable reassignment); Ellerth, 524 U.S. at 761-63 (holding that vicarious liability will always be imputed to an employer when a supervisor takes a tangible employment action, which could include non-career-ending actions such as denial of raise or promotion); Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236, 1247 (11th Cir. 1998) (stating an inference arises that there is a causal link between the harasser’s discriminatory animus and the employment decision “any time the harasser makes a tangible employment decision that adversely affects the plaintiff,” such as a demotion (emphasis added)); see also Ferraro v. Kellwood Co., 440 F.3d 96, 101-02 (2d Cir. 2006) (stating that the affirmative defense is not available if a tangible employment action was taken against an employee as part of a supervisor’s discriminatory harassment and that harassment culminates in a tangible employment action if the action is “linked” to the harassment); cf. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1232 (11th Cir. 2006) (stating that there must be a causal link between the tangible employment action, in this case an alleged reduction in hours, and the sexual harassment, which can be shown by temporal proximity).

²⁵⁹ Under such circumstances, the employee also would have a claim that the denial of a raise was because of sex. See supra section III.C.1 (noting that conduct that is separately actionable also may be part of a hostile work environment claim).

²⁶⁰ See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1303 (11th Cir. 2007) (stating that the affirmative defense is not available where “the discrimination the employee has suffered included a tangible employment action”).

²⁶¹ See Ellerth, 524 U.S. at 754 (analyzing harassment claim as a hostile work environment claim because it involved only unfulfilled threats); Henthorn v. Capitol Commc’ns, Inc., 359 F.3d 1021, 1027 (8th Cir. 2004) (analyzing an unfulfilled implied threat as a factor in determining whether the plaintiff was subjected to a hostile work environment).

²⁶² See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir. 2003) (concluding that “determining not to fire an employee who has been threatened with discharge constitutes a ‘tangible employment action,’ at least where the reason for the change in the employment decision is that the employee has submitted to coercive sexual demands”); Jin v. Metro. Life Ins. Co., 310 F.3d 84, 98 (2d Cir. 2002) (finding prejudicial error where the lower court failed to instruct the jury to consider the supervisor’s conditioning of the plaintiff’s continued employment on her submission to his sexual demands as a possible tangible employment action). But see Santiero v. Denny’s Rest. Store, 786 F. Supp. 2d 1228, 1235 (S.D. Tex. 2011) (concluding that the employee was not subjected to a tangible employment action where she acceded to sexual demands and thereby avoided a tangible employment action); Speaks v. City of Lakeland, 315 F. Supp. 2d 1217, 1224-26 (M.D. Fla. 2004) (rejecting the Jin analysis as inconsistent with Supreme Court and Eleventh Circuit precedent).

²⁶³ Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

²⁶⁴ Ellerth, 524 U.S. at 764.

²⁶⁵ Id. at 765 (emphasis added); Faragher, 524 U.S. at 807 (emphasis added); see also, e.g., Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001) (“Both elements must be satisfied for the defendant-employer to avoid liability, and the defendant bears the burden of proof on both elements.”).

²⁶⁶ Ellerth, 524 U.S. at 765.

²⁶⁷ If the employer had been aware of previous harassment by the same supervisor, then the employer would not be able to establish the affirmative defense if it had failed to take appropriate corrective action in the past to address harassment by that supervisor. See Minarsky v. Susquehanna Cnty., 895 F.3d 303, 312-13 (3d Cir. 2018) (holding that a jury could find that the employer did not act reasonably to prevent harassment by the plaintiff’s supervisor where county officials were aware that the supervisor’s conduct “formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward [the supervisor’s] harassment”).

²⁶⁸ See Faragher, 524 U.S. at 809 (“While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.”); Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1177 (9th Cir. 2003) (“The legal standard for evaluating an employer’s efforts to prevent and correct harassment, however, is not whether any additional steps or measures would have been reasonable if employed, but whether the employer’s actions as a whole established a reasonable mechanism for prevention and correction.”); see also EEOC, Promising Practices for Preventing Harassment (2017), https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment; EEOC, Promising Practices for Preventing Harassment in the Federal Sector, https://www.eeoc.gov/federal-sector/reports/promising-practices-preventing-harassment-federal-sector (last visited Apr. 12, 2024).

²⁶⁹ For further guidance on what constitutes reasonable care to prevent harassment, refer to sectionIV.C.3.a, infra. An employer also may reduce the likelihood of unlawful harassment by conducting climate surveys of employees to determine whether employees believe that harassment exists in the workplace and is tolerated, and by repeating the surveys to ensure that changes to address potential harassment have been implemented. Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf (discussing steps an organization may take to convey a sense of urgency about preventing harassment).

²⁷⁰ See, e.g., Agusty-Reyes v. Dep’t of Educ., 601 F.3d 45, 55 (1st Cir. 2010) (holding that a reasonable jury could conclude that the failure to disseminate the harassment policy and complaint procedure precluded the employer from establishing the first prong of the defense); Ortiz v. Sch. Bd., 780 F. App’x 780, 786 (11th Cir. 2019) (per curiam) (denying summary judgment to the employer on the Faragher-Ellerth affirmative defense where there was evidence that the employer had failed to take reasonable steps to disseminate its anti-harassment policy).

²⁷¹ See EEOC v. V & J Foods, Inc., 507 F.3d 575, 578 (7th Cir. 2007) (explaining that, although an employer need not tailor its complaint procedure to the competence of each employee, “the known vulnerability of a protected class has legal significance”). In V & J Foods, the victims of harassment were teenage girls working part-time, and often as their first job, in a small retail outlet. Id. The court criticized the defendant’s complaint procedures as “likely to confuse even adult employees,” and stated, “[k]nowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.” Id.

²⁷² EEOC v. Spud Seller, Inc., 899 F. Supp. 2d 1081, 1095 (D. Colo. 2012) (determining a trial was required on the issue of whether the employer, which employed some individuals who spoke only Spanish, could satisfy the Faragher-Ellerth affirmative defense where the employer’s handbook contained an anti-harassment policy in English, but there was no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish-speaking employees).

²⁷³ See Clark v. United Parcel Serv., Inc., 400 F.3d 341, 349 (6th Cir. 2005) (“While there is no exact formula for what constitutes a ‘reasonable’ sexual harassment policy, an effective policy should at least . . . require supervisors to report incidents of sexual harassment.”); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (criticizing employer’s putative sexual harassment policy where the policy, inter alia, failed to place any duty on supervisors to report incidents of sexual harassment to their superiors); Wilson v. Tulsa Junior Coll., 164 F.3d 534, 541 (10th Cir. 1998) (criticizing employer policy for failing to “provide instruction on the responsibilities, if any, of a supervisor who learns of an incident of harassment through informal means”); Varner v. Nat’l Super Mkts., 94 F.3d 1209, 1214 (8th Cir. 1996) (holding employer liable where the company’s policy “in effect required [the plaintiff’s] supervisor to remain silent notwithstanding his knowledge of the incidents”); cf. Ridley v. Costco Wholesale Corp., 217 F. App’x 130, 138 (3d Cir. 2007) (declining to impose punitive damages where defendant provided new supervisors with detailed materials regarding supervisors’ obligation to address discrimination issues).

²⁷⁴ See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998) (holding as a matter of law that the city did not exercise reasonable care to prevent the supervisors’ harassment where, among other defects, the city’s policy “did not include any assurance that the harassing supervisors could be bypassed in registering complaints”); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986) (stating that it was “not altogether surprising” that the complainant did not follow a grievance procedure that apparently required her to complain first to her supervisor, who was the alleged harasser); Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App’x 587, 596 (6th Cir. 2009) (reversing grant of summary judgment on a hostile work environment claim where the employer’s policy failed to provide a mechanism for bypassing a harassing supervisor when making a complaint, inter alia); Clark, 400 F.3d at 349-50 (stating that a reasonable sexual harassment procedure should provide a mechanism for bypassing a harassing supervisor when making a complaint); Stewart v. Trans-Acc, Inc., No. 1:09-cv-607, 2011 WL 1560623, at *11 (S.D. Ohio Apr. 25, 2011) (noting the employer’s policy “[c]rucially . . . does not contain a reporting procedure, much less a mechanism for bypassing a harassing supervisor”); see also Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf (“Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.”).

²⁷⁵ See Wilson, 164 F.3d at 541 (noting deficiencies with the employer’s policy, including a supervisor-bypass option that “is located in a separate facility and is not accessible during the evening or weekend hours when many employees and students are on the various campuses”); Lamarr–Arruz v. CVS Pharm., Inc., 271 F. Supp. 3d 646, 661 (S.D.N.Y. 2017) (the employee’s testimony that complaints to the ethics hotline were ignored raises questions regarding the reasonableness of the employer’s purported available corrective measures); Spud Seller, 899 F. Supp. 2d at 1095 (questioning whether the employer’s anti-harassment policy was sufficient where employees who spoke only Spanish could not bring complaints directly to the individuals identified in the policy because the points of contact did not speak Spanish); Wilborn v. S. Union State Cmty. Coll., 720 F. Supp. 2d 1274, 1300 (M.D. Ala. 2010) (criticizing the employer’s complaint reporting procedure where employees were directed to file complaints with one person at an address located in a different city, the point of contact never visited the location where the harassed employee worked, and the harassed employee was not provided with any other contact information for the point of contact); Escalante v. IBP, Inc., 199 F. Supp. 2d 1093, 1103 (D. Kan. 2002) (determining the employer failed to show it exercised reasonable care by promulgating and implementing an anti-harassment policy where it “has a confusing number of contradicting policies, each stating a different reporting mechanism, the specific policy dealing with discrimination claims only provides the employee one person to report such claims to[, and] [t]his person is located in another state, is only accessible by telephone, and the policy does not state the hours or days in which this person may be reached”); Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1254, 1269 n.22 (M.D. Ala. 2001) (noting “mid-level supervisors may have blocked Plaintiffs’ attempts to contact higher-ranking supervisors” thereby rendering the complaint process inaccessible and deficient); cf. Ocheltree, 335 F.3d at 334 (finding the employer’s “open door” reporting policy deficient where the two points of contact were either always unavailable or refused to speak with the employee when the employee attempted to complain); Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1298 (11th Cir. 2000) (noting the employer’s policy designated several additional company representatives to whom an employee could complain regarding harassment and that these individuals were accessible to employees). Accessibility of points of contact can also be relevant when addressing the second prong of the Faragher-Ellerth affirmative defense, which considers whether the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. See infra sectionIV.C.2.b.ii and note 297.

²⁷⁶ See EEOC v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 436 (7th Cir. 2012) (stating “an employer’s complaint mechanism must provide a clear path for reporting harassment” and criticizing the defendant for, inter alia, failing to provide any point of contact or contact information for employees to make harassment complaints); cf. Helm v. Kansas, 656 F.3d 1277, 1288 (10th Cir. 2011) (finding the employer’s policy, which included “a complaint procedure and list of personnel to whom harassment may be reported” reasonable).

²⁷⁷ See Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005) (describing a prompt investigation as a “hallmark of reasonable corrective action”).

²⁷⁸ See Thomas v. BET Soundstage Rest., 104 F. Supp. 2d 558, 565-66 (D. Md. 2000) (stating that the failure to provide confidentiality or protection from retaliation where there is evidence of prevalent hostility can support a finding that the policy was defective and dysfunctional); cf. AutoZone, Inc. v. EEOC, 421 F. App’x 740, 741-42 (9th Cir. 2011) (“The EEOC introduced evidence that despite AutoZone policy requiring managers to ‘thoroughly investigate each reported allegation as confidentially as possible,’ Anderson interviewed Wing about her complaint in a semi-public part of her own store.”). An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf. Records relating to harassment complaints should be kept confidential on the same basis.

²⁷⁹ See Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1145 (8th Cir. 2007) (holding that the employer demonstrated that it exercised reasonable care to prevent sexual harassment where the employer had and effectively deployed a facially valid anti-harassment policy, which included a non-retaliation provision and a flexible reporting procedure that listed four individuals who may be contacted in the case of harassment); Ferraro v. Kellwood Co., 440 F.3d 96, 102-03 (2d Cir. 2006) (concluding that the employer satisfied the first element of the affirmative defense to disability-based harassment where, among other things, it had an anti-harassment policy that prohibited harassment on account of disability, promised that complaints would be handled promptly and confidentially, and contained an anti-retaliation provision); Miller v. Woodharbor Molding & Millworks, Inc., 80 F. Supp. 2d 1026, 1029 (N.D. Iowa 2000) (stating the gravamen of an effective anti-harassment policy includes three provisions: (1) training for supervisors, (2) an express anti-retaliation provision, and (3) multiple complaint channels for reporting the harassing conduct) (collecting cases supporting inclusion of each provision), aff’d, 248 F.3d 1165 (8th Cir. 2001); see also Jaros v. LodgeNet Entm’t Corp., 294 F.3d 960, 966 (8th Cir. 2002) (upholding a sexual harassment jury verdict for the plaintiff where she resigned instead of cooperating with her employer’s investigation because, among other things, the Human Resources Director did nothing to assure her that she would not be subjected to retaliation).

²⁸⁰ This is a non-exhaustive list. See, e.g., Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic 44-60 (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf; EEOC, Promising Practices for Preventing Harassment (2017), https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment.

²⁸¹ For a detailed discussion of promising practices for anti-harassment training, see EEOC, Promising Practices for Preventing Harassment (2017), https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment, and EEOC, Promising Practices for Preventing Harassment in the Federal Sector, https://www.eeoc.gov/federal-sector/reports/promising-practices-preventing-harassment-federal-sector (last visited Apr. 12, 2024).

²⁸² See Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006) (“An employer may demonstrate the exercise of reasonable care, required by the first element, by showing the existence of an antiharassment policy during the period of the plaintiff's employment, although that fact alone is not always dispositive.”).

²⁸³ See, e.g., Wallace v. Performance Contractors, Inc., 57 F.4th 209, 223 (5th Cir. 2023) (determining the “evidence indicates that [the defendant] had a policy in theory but not one in practice” where both the plaintiff and her husband tried to contact the human resources office several times to no avail and harassment occurred in front of other employees and was never reported, despite the defendant’s policy requiring any person witnessing harassment to report it); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 349-50 (6th Cir. 2005) (“While there is no exact formula for what constitutes a ‘reasonable’ sexual harassment policy, an effective policy should at least . . . provide for training regarding the policy.”).

²⁸⁴ See Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999) (“But where, as here, there is no evidence that an employer adopted or administered an anti-harassment policy in bad faith or that the policy was otherwise defective or dysfunctional, the existence of such a policy militates strongly in favor of a conclusion that the employer ‘exercised reasonable care to prevent’ and promptly correct sexual harassment.”); see also Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir. 2000) (“[B]ecause we find no inherent defect in the complaint procedures established by Publix’s sexual harassment policy, nor any evidence that the policy was administered in bad faith, we conclude that Publix exercised reasonable care to prevent sexual harassment.”).

²⁸⁵ MacCluskey v. Univ. of Conn. Health Ctr., 707 F. App’x 44, 47-48 (2d Cir. 2017) (“Even where an employer provides a reasonable avenue for complaint, it may be liable if it knew or should have known about the harassment and failed to take appropriate action.” (citing Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009))).

²⁸⁶ Duch, 588 F.3d at 764-66 (imputing the supervisor’s actual or constructive knowledge of the harassment to the employer).

²⁸⁷ Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

²⁸⁸ See Faragher, 524 U.S. at 807 (“If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.”).

²⁸⁹ Cf. Savino v. C.P. Hall Co., 199 F.3d 925, 935 (7th Cir. 1999) (stating that the employee’s “unreasonable foot-dragging will result in at least a partial reduction of damages, and may completely foreclose liability”).

²⁹⁰ Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765; see also Roby v. CWI, Inc., 579 F.3d 779, 786 (7th Cir. 2009) (second prong of affirmative defense satisfied where the plaintiff was aware that the anti-harassment policy required immediate reporting of sexual harassment, yet she failed to say anything for at least five months); Taylor v. Solis, 571 F.3d 1313, 1318 (D.C. Cir. 2009) (second prong of affirmative defense satisfied where a reasonable employee in the plaintiff’s position would have used the employer’s complaint procedure yet the plaintiff instead posted the sexual harassment policy on her office door and told her friend that she was being harassed).

²⁹¹ Minarsky v. Susquehanna Cnty., 895 F.3d 303, 314-16 (3d Cir. 2018) (concluding that a jury could find that the plaintiff’s failure to report harassment by her supervisor was not unreasonable where, among other things, her working conditions worsened after she asserted herself in the past, the supervisor warned her that she could not trust the individuals to whom she was required to report the harassment, and the employer had known of the supervisor’s prior misconduct but “merely slapped him on the wrist”); Johnson v. West, 218 F.3d 725, 732 (7th Cir. 2000) (holding that whether the plaintiff’s failure to complain was unreasonable was a factual issue where evidence showed the harasser threatened the plaintiff, verbally abused her, and threw mail in her face); Meza-Perez v. Sbarro LLC, No. 2:19-cv-00373, 2020 WL 12752817, at *8 (D. Nev. Dec. 16, 2020) (concluding a reasonable jury could find the plaintiff’s delay in reporting was not unreasonable where the harasser repeatedly threatened the plaintiff and her family members with physical harm, termination, and deportation).

²⁹² The employee is not required to have chosen “the course that events later show to have been the best.” Restatement (Second) of Torts § 918, comment c (1979); see also Kramer v. Wasatch Cnty. Sheriff’s Off., 743 F.3d 726, 754 (10th Cir. 2014) (noting that the employee’s response to harassment was not necessarily unreasonable even if “20/20 hindsight” suggests that she “could have avoided” some of the harm).

²⁹³ See Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1064 (10th Cir. 2009) (stating that an employee should not necessarily be expected to complain after the first or second incident of relatively minor harassment and that an employee is not required to report “individual incidents that are revealed to be harassment only in the context of additional, later incidents, and that only in the aggregate come to constitute a pervasively hostile work environment”); Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 36-37 (1st Cir. 2003) (noting that “sometimes inaction is reasonable” and concluding that the failure to report relatively minor incidents of harassment was not unreasonable).

²⁹⁴ See Crockett v. Mission Hosp., Inc., 717 F.3d 348, 357-58 (4th Cir. 2013) (concluding that the second prong of the defense was established by uncontradicted evidence that the employer counseled the complainant on how to file a formal complaint, provided her with a copy of the sexual harassment policy, and repeatedly met with her in an effort to learn what had happened so it could correct the situation, but the complainant refused, for a month, to provide any details or information about the conduct that had prompted her complaint).

²⁹⁵ Cf. Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998) (stating that employers can establish a defense only if the plaintiff unreasonably failed to make use of “a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense”).

²⁹⁶ See id. (referencing a proven, effective complaint process that was available “without undue risk or expense”).

²⁹⁷ See Derry v. EDM Enters., Inc., No. 09-CV-6187, 2010 WL 3586739, at *3 (D. Or. Sept. 13, 2010) (concluding that the employee’s failure to take advantage of the employer’s corrective opportunities was not unreasonable where the only contact persons for reporting harassment were her supervisor, who was the alleged harasser, and the CEO, whose phone number was not readily available and whom the employee was discouraged from contacting without going through her supervisor); see also supra note 275.

²⁹⁸ Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001) (holding that the employee’s failure to report harassment based on speculation that complaints would be ignored was not reasonable).

²⁹⁹ See Monteagudo v. Asociación de Empleados del Estado Libre Asociado de Puerto Rico, 554 F.3d 164, 171-72 (1st Cir. 2009) (concluding that a jury could have determined that the plaintiff’s failure to report sexual harassment by her supervisor was not unreasonable, in part, because of the evidence of a close relationship between the harasser and officials designated to accept complaints); Shields v. Fed. Express Customer Info. Servs. Inc., 499 F. App’x. 473, 482 (6th Cir. 2012) (concluding that a reasonable jury could find that the plaintiffs did not act unreasonably in failing to report the operations manager’s sexual harassment to other managers where the harasser repeatedly told them that other managers were his friends and would not believe the plaintiffs if they complained).

³⁰⁰ See Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (stating evidence that the employer has ignored or resisted similar complaints could be sufficient to excuse an employee’s failure to use the employer’s complaint procedure); Mancuso v. City of Atlantic City, 193 F. Supp. 2d 789, 806 (D.N.J. 2002) (concluding jury could reasonably find that the plaintiff’s failure to complain of harassment was not unreasonable where the plaintiff repeatedly witnessed the employer’s failure to respond to coworkers’ and her own complaints); Sullivan v. Hanover Foods Corp., No. 18-803 (MN), 2020 WL 211216, at *17 (D. Del. Jan. 14, 2020) (evidence that human resources and management frequently ignored complaints regarding race discrimination raised a genuine issue of material fact as to whether the plaintiff was unreasonable in failing to take advantage of preventive or corrective opportunities provided by the defendant); Baker v. Int’l Longshoremen’s Ass’n, Local 1423, No. CV205-162, 2009 WL 368650 at *8 (S.D. Ga. Feb. 13, 2009) (holding that the plaintiff could introduce evidence of ignored harassment complaints to show that her failure to use the union grievance process was reasonable); see also Minarsky v. Susquehanna Cnty., 895 F.3d 303, 313 n.12 (3d Cir. 2018) (“While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it this way.”).

³⁰¹ Barrett, 240 F.3d at 267 (holding that employee’s failure to report harassment based on a speculative fear of retaliation was not reasonable).

³⁰² See Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 416 (6th Cir. 2021) (denying summary judgment and concluding the plaintiff’s proffered evidence demonstrated she “was under a credible threat of retaliation” that alleviated her duty to report the harassment); Minarsky, 895 F.3d at 314 (“If a plaintiff’s genuinely held, subjective belief of potential retaliation from reporting her harassment appears to be well-founded, and a jury could find that this belief is objectively reasonable, the trial court should not find that the defendant has proven the second Faragher-Ellerth element as a matter of law.”); EEOC v. U.S. Bell, Link Techs., Corp., No. 2:03-CV-237, 2005 WL 1683979, at *19 (N.D. Ind. July 19, 2005) (determining that female employees were not unreasonable when they failed to report harassment as a result of the harasser’s threats of retaliation and intimidation).

³⁰³ See Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 37 (1st Cir. 2003) (concluding that a jury could find that the seventeen-year-old complainant did not act unreasonably in failing to report a sexual assault where her supervisor threatened to have her fired if she complained and he boasted that his father was “really good friends” with the owner); Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 525-26 (5th Cir. 2001) (concluding that, in light of the supervisor’s repeated threats of retaliation, a jury could infer that the employee’s nine-month delay in filing a complaint was not unreasonable); O’Brien v. Middle E. Forum, No. 2:19-cv-06078, 2021 WL 2186434, at *9 (E.D. Pa. May 28, 2021) (concluding that a reasonable jury could find that the employee’s fear of retaliation was objectively reasonable based on evidence that the harasser “frequently threatened female employees by telling them that he could hack their computers, view their communications, and that he had cameras throughout the office”; asked female employees to spy on one another and had his sister eavesdrop on them; and had told other female employees he would have them fired for being a “walking lawsuit”); Kanish v. Crawford Area Transp. Auth., No. 1:19-cv-00338 (Erie), 2021 WL 1520516, at *8 (W.D. Pa. Mar. 26, 2021) (holding that there were material issues of fact regarding whether the plaintiff unreasonably failed to avail herself of preventive or corrective opportunities, where she feared being fired if she complained about her supervisor; the harasser viewed himself as “untouchable” because he was a supervisor and cop; and the human resources manager was already aware of the harassment but did not take any action, leading the plaintiff to believe that a complaint would be futile).

³⁰⁴ See EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 437 (7th Cir. 2012) (stating that the employee may have been justified in not reporting the assistant manager’s harassment to the district manager because she had previously been treated harshly by a different harasser after reporting his conduct to the district manager); Still v. Cummins Power Sys., No. 07-5235, 2009 WL 57021, at *13 (E.D. Pa. Jan. 8, 2009) (concluding that a trier of fact could find the plaintiff’s failure to report the supervisor’s racial harassment reasonable, given the plaintiff’s testimony that two other employees suffered retaliation after complaining about harassment by the same supervisor).

³⁰⁵ See, e.g., Weger v. City of Ladue, 500 F.3d 710, 725 (8th Cir. 2007) (explaining that imposing vicarious liability on an employer is a compromise requiring more than “ordinary fear or embarrassment” to justify delay in complaining (quoting Reed, 333 F.3d at 35)).

³⁰⁶ See Minarsky, 895 F.3d at 316 (concluding that a reasonable jury could find that an employee’s delay in reporting sexual harassment by her supervisor was reasonable, in part, because of the psychological impact the harassment had on her); see also Brianna Messina, Redefining Reasonableness: Supervisory Harassment Claims in the Era of #MeToo, 168 U. Pa. L. Rev. 1061, 1084 and accompanying notes (2020) (citing studies analyzing psychological effects of sexual harassment).

³⁰⁷ See, e.g., Agusty-Reyes v. Dep’t of Educ., 601 F.3d 45, 56 (1st Cir. 2010) (stating that a jury could find that the employee exercised reasonable care to avoid harm by filing union complaints, at least one of which was copied to the employer); Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999) (concluding that the employee made an effort “to avoid harm otherwise” where she filed a union grievance and did not utilize the employer’s harassment complaint process since both the employer and union procedures were corrective mechanisms designed to avoid harm).

³⁰⁸ Cf. EEOC v. Glob. Horizons, Inc., 915 F.3d 631, 641-42 (9th Cir. 2019) (explaining that where a client was aware of discrimination and could have taken corrective action to stop it, the client may be liable); Mullis v. Mechanics & Farmers Bank, 994 F. Supp. 680, 686 (M.D.N.C. 1997) (holding that a temporary agency may be liable for harassment at a client’s workplace where the employee complained to the temporary agency and the temporary agency made no investigation into or attempt to remedy the situation). Depending upon the facts and specific nature of the employment relationship, the staffing firm, the client, or both may be legally responsible under the federal EEO laws for undertaking corrective action. See generally EEOC, Notice No. 515.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997), https://www.eeoc.gov/laws/guidance/enforcement-guidance-application-eeo-laws-contingent-workers-placed-temporary.

³⁰⁹ As noted earlier in section IV.C.2.b.i, the principles discussed in this section (section IV.C.3) also apply in determining whether the employer has satisfied the first prong of the Faragher-Ellerth affirmative defense.

³¹⁰ For further discussion of the general application of the negligence standard, see notes 229 to 232 and accompanying text.

³¹¹ See Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). The Supreme Court stressed in Vance that a complainant could “prevail simply by showing that the employer was negligent in permitting…harassment to occur.” Id. at 445; see also id. at 448-49 (explaining that an employee can establish employer liability for nonsupervisory harassment “by showing that his or her employer was negligent in failing to prevent harassment from taking place”).

³¹² See id. at 449 (stating that evidence relevant in determining whether the employer unreasonably failed to prevent harassment would include evidence that the employer did not monitor the workplace, that it failed to respond to complaints, that it failed to provide a system for registering complaints, or that it effectively discouraged complaints from being filed); see also Doe v. Oberweis Dairy, 456 F.3d 704, 716 (7th Cir. 2006) (stating that the employer is liable for coworker harassment if “it failed to have and enforce a reasonable policy for preventing harassment, or in short only if it was negligent in failing to protect the plaintiff from predatory coworkers”); Cerros v. Steel Techs., Inc., 398 F.3d 944, 953 (7th Cir. 2005) (stating that implementation of a harassment policy training session was relevant to whether the employer exercised reasonable care to prevent harassment, but adding that “[t]he mere existence of such a policy . . . does not necessarily establish that the employer acted reasonably in remedying the harassment after it has occurred or in preventing future misconduct”); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334-35 (4th Cir. 2003) (concluding that a jury could find that the employer had constructive knowledge of harassment where the employer failed to provide adequate avenues to complain about harassment); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1279-80 (11th Cir. 2002) (concluding that an anti-harassment policy was not effective where it was not aggressively or thoroughly disseminated, it was not posted in the workplace, managers were not familiar with it, it was not in the complainant’s personnel file, and the employer’s actual practice indicated a tolerance of harassment or discrimination); Hollins v. Delta Airlines, 238 F.3d 1255, 1258 (10th Cir. 2001) (stating that the employer’s adoption of a harassment policy that encouraged employees to report harassment to a supervisor or the EEO Director was relevant in evaluating employer liability for coworker harassment).

³¹³ Vance, 570 U.S. at 445-46 (stating that the “nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent”).

³¹⁴ Oberweis Dairy, 456 F.3d at 717.

³¹⁵ See supra section IV.B.2 (addressing the definition of “supervisor”).

³¹⁶ Vance, 570 U.S. at 449.

³¹⁷ See Freitag v. Ayers, 468 F.3d 528, 539-40 (9th Cir. 2006) (rejecting the defendant’s argument that prisons are uniquely exempt from liability for sexual harassment under Title VII and affirming that prisons must implement and enforce policies reasonably calculated to minimize the risk of inmates harassing staff).

³¹⁸ Risk factors for harassment are identified and discussed in an EEOC report published by the Select Task Force on the Study of Harassment in the Workplace. See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic, § E (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf.

³¹⁹ See 29 C.F.R. §§ 1604.11(d), (e); see also, e.g., Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 419 (8th Cir. 2010); Beckford v. Dep’t of Corr., 605 F.3d 951, 957-58 (11th Cir. 2010); Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1257 (11th Cir. 2003).

³²⁰ See, e.g., Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 931 (7th Cir. 2017) (holding that the employer could be liable if it knew or should have known of the non-supervisor’s harassing conduct yet failed to act).

³²¹ See, e.g., Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (stating that an employer has “actual notice of harassment when sufficient information either comes to the attention of someone who has the power to terminate the harassment, or it comes to someone who can reasonably be expected to report or refer a complaint to someone who can put an end to it”); see also West v. Tyson Foods, Inc., 374 F. App’x 624, 634 (6th Cir. 2010) (determining it was reasonable for the jury to conclude that the employer had actual knowledge of harassment where the aggrieved employee reported harassment to her supervisor in compliance with the employer’s anti-harassment policy); Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1363-64 (11th Cir. 1999) (per curiam) (addressing the question of whether the employer had adequate notice of the harassment, the court stated, “[t]his inquiry is made easy by the fact that Sundor’s own promulgated sexual harassment policy” directs employees to report harassment to their line manager, personnel, or any other manager with whom the employee is comfortable and that “[w]ith this policy, Sundor itself answered the question of when it would be deemed to have notice of the harassment sufficient to obligate it or its agents to take prompt and appropriate remedial measures”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998) (“Actual knowledge will be demonstrable in most cases where the plaintiff has reported harassment to management-level employees.”).

³²² See Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 107-08 (3d Cir. 2009) (stating that an employee’s knowledge of harassment is imputed to the employer if the employee is specifically charged with addressing harassment, such as a human resources manager designated to receive complaints); Nischan, 865 F.3d at 932 (7th Cir. 2017) (concluding that because the employee handbook required any employee with supervisory or managerial responsibility to report any possible harassment he or she is aware of, the employer had notice if a low-level supervisor was aware of harassment directed at a coworker with the same low-level supervisor title); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 350-51 (6th Cir. 2005) (applying Title VII standards to hold that the employer could be liable for the failure to prevent and correct harassment where the company’s policy imposed the duty on all supervisors to report harassment, and multiple supervisors allegedly witnessed harassment but failed to report it to management); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 403 (1st Cir. 2002) (concluding that a team leader’s knowledge was imputed to the employer where it had a policy allowing employees to report sexual harassment to team leaders).

³²³ See Torres v. Pisano, 116 F.3d 625, 636-47 (2d Cir. 1997).

³²⁴ This example is adapted from the facts in Lambert v. Peri Formworks Systems, Inc., 723 F.3d 863 (7th Cir. 2013).

³²⁵ See Clark, 400 F.3d at 350 (concluding that the employer had notice of harassment that was witnessed by supervisors with a duty to report it to management, where the employer’s anti-harassment policy required “all supervisors and managers” to report such harassment to the appropriate management personnel) (emphasis in original).

³²⁶ See, e.g., Okoli v. City of Balt., 648 F.3d 216, 224 n.8 (4th Cir. 2011) (determining that, although the employee’s complaint did not explicitly mention sexual harassment, the employer “surely should have known” that the plaintiff’s complaints, which contained the word harassment and addressed “unethical” and “degrading and dehumanizing” conduct, likely encompassed sexual harassment).

³²⁷ See Valentine v. City of Chi., 452 F.3d 670, 680-81 (7th Cir. 2006) (determining that a question of material fact existed as to whether the plaintiff’s complaints about unwanted touching provided the employer with sufficient notice of harassment); Burke v. Villa, No. 19-CV-2957, 2021 WL 5591711, at *9 (E.D.N.Y. Nov. 30, 2021) (concluding a rational juror could find the plaintiff’s complaint of continuous touching by an assistant manager to the point of aggravation was sufficiently clear to place the employer on notice of potential harassment).

³²⁸ This example is adapted from the facts in Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009).

³²⁹ See Erickson v. Wis. Dep’t of Corr., 469 F.3d 600, 605-06 (7th Cir. 2006) (stating that Title VII’s “‘primary objective’ . . . is ‘not to provide redress but to avoid harm’” and that the duty to prevent unlawful harassment may require an employer to take reasonable steps to prevent harassment once informed of a reasonable probability that it will occur (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998))); id. at 606 (“[A]n employer who receives notice that some probability of sexual harassment exists must adequately respond to that information within a reasonable amount of time.”); see also Vance v. Ball State Univ., 570 U.S. 421, 448-49 (2013) (stating that the employer is liable for harassment if it failed to act reasonably to prevent the harassment); cf. Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998) (explaining that Title VII’s deterrent purpose would be served by encouraging employees to report harassment at an early stage before it is severe or pervasive). But see Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 419 (8th Cir. 2010) (subdividing the course of harassment into separate periods: one during which it was neither severe nor pervasive and a second during which it was severe or pervasive, but at which point the court determined the employer took reasonable corrective measures).

³³⁰ Kramer v. Wasatch Cnty. Sheriff’s Off., 743 F.3d 726, 756 (10th Cir. 2014) (quoting Hirase-Doi v. U.S. W. Commc’ns, Inc., 61 F.3d 777, 783-84 (10th Cir. 1995)).

³³¹ See e.g., Jenkins v. Winter, 540 F.3d 742, 749 (8th Cir. 2008) (quoting Weger v. City of Ladue, 500 F.3d 710, 721 (8th Cir. 2007)).

³³² See, e.g., id.; Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (quoting Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003)); Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 105 n.4 (3d Cir. 2009) (quoting Kunin v. Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999)); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (stating that the employer cannot adopt a “see no evil, hear no evil” strategy and that notice of harassment is imputed to the employer if a “‘reasonable [person], intent on complying with Title VII,’ would have known about the harassment” (quoting Spicer v. Va. Dep’t of Corr., 66 F.3d 705, 710 (4th Cir. 1995))).

³³³ Chapman v. Oakland Living Ctr., 48 F.4th 222, 232 (4th Cir. 2022) (concluding that a reasonable jury could find that the employer had constructive notice of harassment where the employer failed to produce evidence that it had a harassment reporting policy when the harassment occurred and, although the employer had an employee handbook, the only copy was kept in a desk where the plaintiff may never have seen it).

³³⁴ This example is adapted from the facts in Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002).

³³⁵ Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (stating that a base level of reasonable corrective action may include, among other things, prompt initiation of an investigation); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011) (stating that an adequate remedy requires the employer to intervene promptly).

³³⁶ See Crawford v. BNSF Ry. Co., 665 F.3d 978, 985 (8th Cir. 2012) (concluding that the defendant exercised reasonable care to prevent and correct harassment when it initiated an investigation upon receiving a harassment complaint, placed the alleged perpetrator on administrative leave within two days, and terminated him within two weeks); Pantoja v. Dep’t of Air Force, EEOC Appeal No. 01995176, 2001 WL 1526459, at *1 (Nov. 21, 2001) (affirming administrative judge’s decision that the agency was not liable for alleged sexual harassment where the agency immediately investigated the allegations and within one day moved the alleged harasser to another building).

³³⁷ See EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 436 (7th Cir. 2012) (stating that a two-month delay in initiating an investigation was not the type of response “reasonably likely to prevent the harassment from recurring” (quoting Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005))).

³³⁸ See Hafford v. Seidner, 183 F.3d 506, 514 (6th Cir. 1999) (denying the employer’s motion for summary judgment where the employer failed to investigate racially abusive phone calls that were known to the employer, noting that “[e]arlier action may have discouraged the later calls and other conduct toward [the employee]”). For federal employers, EEOC Management Directive 715 (MD-715), which is the policy guidance the EEOC provides to federal agencies for their use in establishing and maintaining effective EEO programs, at Part G (Agency Self-Assessment Checklist) asks, in the context of receiving a harassment allegation, whether the agency conducted a prompt inquiry “beginning within 10 days of notification” of alleged harassment. See EEOC, MD-715 - PART G Agency Self-Assessment Checklist, at C.2.a.5, https://www.eeoc.gov/federal-sector/management-directive/md-715-part-g-agency-self-assessment-checklist (last visited Apr. 12, 2024).

³³⁹ See Rockymore v. U.S. Postal Serv., EEOC Appeal No. 0120110311, 2012 WL 424237, at *5 (Jan. 31, 2012) (finding that the agency failed to take prompt corrective action where it did not provide any justification for its two-week delay in responding to the complainant’s sexual harassment complaint, particularly considering the complainant’s indication that the alleged harasser had touched her).

³⁴⁰ Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1304 (11th Cir. 2007); see also EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 465-66 (5th Cir. 2013) (en banc) (holding that a reasonable jury could conclude that the employer failed to take reasonable measures to prevent and correct harassment where, among other things, the harassment complaint resulted in a belated and cursory 20-minute investigation in which the investigator did not take any notes or ask any questions during his meeting with the complainant, and he never contacted the employer’s EEO Officer or sought advice about how to handle the matter); Shields v. Fed. Express Customer Info. Servs. Inc., 499 F. App’x 473, 480 (6th Cir. 2012) (concluding that a jury could find that the employer might have uncovered evidence of harassment if it had conducted a thorough investigation); Ross v. City of Dublin, No. 2:14-CV-02724, 2016 WL 7117389, at *18 (S.D. Ohio Dec. 7, 2016) (“A reasonable jury could find that [the employer’s] failure to interview [the complainant] . . . manifests indifference or unreasonableness.”); Lightbody v. Wal-Mart Stores E., L.P., No. 13-cv-10984, 2014 WL 5313873, at *5 (D. Mass. Oct. 17, 2014) (concluding that a reasonable jury could find that the employer was liable for sexual harassment of the plaintiff because, in investigating the plaintiff’s complaint, it failed to follow leads that bore on the alleged harasser’s credibility); Grimmett v. Ala. Dep’t of Corr., No. CV-11-BE-3594-S, 2013 WL 3242751, at *13 (N.D. Ala. June 25, 2013) (concluding that the employer failed to show that it exercised reasonable care where it presented general evidence that it had initiated an investigation but no specific evidence that would enable the court to evaluate the adequacy of the investigation and the employer’s conclusory finding that the harassment complaint was unfounded).

³⁴¹ See Hathaway v. Runyon, 132 F.3d 1214, 1224 (8th Cir. 1997) (“It is not a remedy for the employer to do nothing simply because the coworker denies that the harassment occurred, and an employer may take remedial action even where a complaint is uncorroborated.” (citations omitted)).

³⁴² This example is adapted from the facts in EEOC v. Boh Brothers Construction Company, LLC, 731 F.3d 444 (5th Cir. 2013) (en banc).

³⁴³ In the context of federal sector employment, federal agencies should consult with legal counsel to address potential Privacy Act concerns.

³⁴⁴ At a minimum, pursuant to EEOC regulation, employers are required to keep records for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. If an EEOC charge is filed, the employer is required to preserve all records relevant to the charge until its final disposition. The date of final disposition is when the statutory period for filing a lawsuit expires or, where a lawsuit has been filed by an aggrieved person, the EEOC, or the Department of Justice, the date when the litigation is terminated. 29 C.F.R. § 1602.14.

³⁴⁵ See Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (stating the obligation to take prompt corrective action is comprised of two parts, of which “[t]he first part consists of the temporary steps the employer takes to deal with the situation while it determines whether the complaint is justified”).

³⁴⁶ See Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) (agreeing that a “remedial measure that makes the victim of sexual harassment worse off is ineffective per se” and that, thus, a transfer that reduces a complainant’s wages or impairs her prospects for promotion is not adequate corrective action); see also EEOC v. Cromer Food Servs., Inc., 414 F. App’x 602, 608 (4th Cir. 2011) (stating that the offer to transfer the complainant to another shift that would have made him worse off was not an acceptable remedial measure); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (concluding that remedial action was not adequate where the employer twice changed the complainant’s schedule to separate her from the harasser, rather than changing the harasser’s shift or work area or firing the harasser); Taylor v. CSX Transp., 418 F. Supp. 2d 1284, 1307-08 (M.D. Ala. 2006) (agreeing with the plaintiff that evidence that an employer’s remedy placed the plaintiff in a worse position than prior to complaining about harassment is evidence that the employer did not take appropriate corrective action); cf. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 812 (7th Cir. 2000) (concluding that, where the employer transferred a harassed employee in response to a harassment complaint to a position that left her materially worse off, the employer could be held liable for the transfer because it “breache[d] the duty of care it owe[d] to the harassed employee”).

³⁴⁷ Cf. EEOC, Enforcement Guidance on Retaliation and Related Issues § II.C (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues#C._Causal; id. at Example 31 (providing example of preliminary relief granted to prohibit retaliation against alleged harassment victims during pendency of investigation (citing EEOC v. Evans Fruit Co., No. CV-10-3033, 2010 WL 2594960, at *1-2 (E.D. Wash. June 24, 2010))).

³⁴⁸ Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004) (quoting Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001)).

³⁴⁹ See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (stating that the employer’s response is generally adequate “if it is reasonably calculated to end the harassment” (quoting Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999))); Hoyle v. Freightliner, LLC, 650 F.3d 321, 335 (4th Cir. 2011) (holding that a reasonable jury could find that the employer was liable for harassment where it failed to promptly and effectively enforce its anti-harassment policies, which called for a “firm response designed to end the harassment”); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011) (explaining that the reasonableness of a remedy depends on its ability to stop the harasser from continuing his conduct and to persuade potential harassers to refrain from engaging in unlawful conduct); cf. Vance v. Ball State Univ., 646 F.3d 461, 473 (7th Cir. 2011) (concluding that the employer was not liable where it took reasonable steps to prevent the harassment from continuing), aff’d, 570 U.S. 421 (2013).

³⁵⁰ See, e.g., Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1018 (9th Cir. 2018) (stating that the reasonableness of corrective action is evaluated from the perspective of what the employer knew or should have known when it took the action); McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir. 2005) (concluding that the jury was properly instructed to consider the reasonableness of the employer’s response to harassment in light of what it knew at the time that the harassment occurred); Cerros v. Steel Techs., Inc., 398 F.3d 944, 953 (7th Cir. 2005) (stating that the reasonableness of the employer’s response turns on the facts and circumstances when harassment is alleged).

³⁵¹ See, e.g., Pryor v. United Air Lines, Inc., 791 F.3d 488, 498 (4th Cir. 2015) (collecting cases) (“It is only in light of the nature of the harassment that we can see whether a company’s response was proportional by examining the promptness of any investigation, the specific remedial measures taken, and the effectiveness of those measures.”); Scarberry v. Exxonmobil Oil Corp., 328 F.3d 1255, 1259-60 (10th Cir. 2003) (stating that the “test is whether the employer’s response to each incident of harassment is proportional to the incident and reasonably calculated to end the harassment and prevent future harassing behavior”). But see Tutman v. WBBM–TV, Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000) (“[T]he question is not whether the punishment was proportionate to [the] offense but whether [the employer] responded with appropriate remedial action reasonably likely under the circumstances to prevent the conduct from recurring.”).

³⁵² See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 342 (6th Cir. 2008) (concluding that, although separating the harasser and complainant may be adequate in some cases, it was not sufficient in this case where the wrongdoer was a serial harasser and management repeatedly transferred the harasser’s victims instead of taking other corrective action aimed at stopping the harasser’s misconduct, such as training, warning, or monitoring the harasser).

³⁵³ See Vance, 570 U.S. at 445-46; Doe v. Oberweis Dairy, 456 F.3d 704, 717 (7th Cir. 2006). For a discussion of when vicarious liability applies, refer to section IV.B.2, supra.

³⁵⁴ See Vance, 570 U.S. at 445-46.

³⁵⁵ See, e.g., May v. Chrysler Grp., LLC, 716 F.3d 963, 971 (7th Cir. 2012) (stating that the success or failure of corrective action in stopping harassment is not determinative as to employer liability but is nevertheless material in determining whether corrective action was reasonably likely to prevent the harassment from recurring); Wilson v. Moulison N. Corp., 639 F.3d 1, 8 (1st Cir. 2011) (rejecting the argument that corrective action must have been inadequate because it failed to stop the harassment as “nothing more than a post hoc rationalization”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998) (“Because there is no strict liability and an employer must only respond reasonably, a response may be so calculated even though the perpetrator might persist.”).

³⁵⁶ Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999) (“Just as an employer may escape liability even if harassment recurs despite its best efforts, so it can also be liable if the harassment fortuitously stops, but a jury deems its response to have fallen below the level of due care.”); see Fuller v. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995) (stating that an employer that fails to take any corrective action is liable for ratifying unlawful harassment even if the harasser voluntarily stops); Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1123-24 (8th Cir. 2007) (stating that an employer that fails to take proper remedial action in response to harassment is liable because the “combined knowledge and inaction may be seen as demonstrable negligence, or as the employer’s adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer’s policy” (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998))).

³⁵⁷ See discussion of prompt and adequate investigation at section IV.C.3.b.ii(a).

³⁵⁸ See cases cited in note 346.

³⁵⁹ See Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (enumerating factors to be assessed in evaluating the reasonableness of remedial measures and listing potential corrective actions).

³⁶⁰ Dunn v. Washington Cnty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005).

³⁶¹ See Swenson v. Potter, 271 F.3d 1184, 1196 (9th Cir. 2001) (“As a matter of policy, it makes no sense to tell employers that they act at their legal peril if they fail to impose discipline even if they do not find what they consider to be sufficient evidence of harassment. . . . Employees are no better served by a wrongful determination that harassment occurred than by a wrongful determination that no harassment occurred.”).

³⁶² Shields v. Fed. Express Customer Info. Servs. Inc., 499 F. App’x 473, 479-80 (6th Cir. 2012) (explaining that, even if the employer’s investigation did not substantiate sexual harassment claim, the employer still had the responsibility to ensure that the accused harasser did not engage in harassment in the future, such as by monitoring the accused harasser’s conduct); cf. Christian v. AHS Tulsa Reg’l Med. Ctr., LLC, 430 F. App’x 694, 698-99 (10th Cir. 2011) (affirming lower court conclusion that the employer took reasonable corrective action where, despite a “reasonably thorough investigation,” its findings were inconclusive but it nevertheless counseled the alleged harasser as to its antidiscrimination policy, and he remained subject to more serious sanctions if he was again accused of misconduct).

³⁶³ In some cases, the application of the EEO statutes enforced by the EEOC may implicate other rights or requirements including those under the United States Constitution; other federal laws, such as the Religious Freedom Restoration Act (RFRA); or sections 702(a) and 703(e)(2) of Title VII. Whether enforcement of federal workplace anti-harassment laws implicates other legal requirements, and if so, the interplay between federal workplace antidiscrimination laws and any such other legal doctrine, is beyond the scope of this document. For further information, see the relevant sections of EEOC’s Compliance Manual Section on Religious Discrimination. EEOC, Compliance Manual Section 12: Religious Discrimination, No. 915.063, §§ 12-I.C, 12-III.D, and Addendum (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination and EEOC, Compliance Manual Section 2: Threshold Issues, No. 915.003, § 2-III.B.4.b.I (2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues. As with all investigations, charges raising any of these arguments must be considered as presented on a case-by-case basis.

³⁶⁴ Under Title VII, “undue hardship is shown when a burden is substantial in the overall context of an employer’s business,” “tak[ing] into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” Groff v. DeJoy, 600 U.S. 447, 468, 470-71 (2023). With respect to relevant EEOC guidance on religious accommodation, the Court noted that “[w]e have no reservations in saying that a good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by our clarifying decision today.” Id. at 472. EEOC’s Compliance Manual Section on Religious Discrimination, a guidance document that was issued prior to the Groff opinion, explains that “[c]osts to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business,” which in appropriate circumstances can include adverse effects on employee morale and other impacts on coworkers, customers, and workplace productivity. EEOC, Compliance Manual Section 12: Religious Discrimination, No. 915.063, §§ 12-III.D, 12-IV.B.2 (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_67399831738041610749896553. The guidance also explains: “Religious expression can create undue hardship if it disrupts the work of other employees or constitutes — or threatens to constitute — unlawful harassment. Conduct that is disruptive can still constitute an undue hardship, even if it does not rise to the level of unlawful harassment.” Id. § 12-IV.C.6.a, https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_48176006345391610750058898. For more information on balancing religious expression with anti-harassment measures, refer to EEOC Compliance Manual Section 12: Religious Discrimination, No. 915.063, at sections 12-IV.C.6.a. and 12-IV.D. (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_48176006345391610750058898.

³⁶⁵ See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607 (9th Cir. 2004). Accommodating an employee’s religious belief will not impose undue hardship “merely because the employee’s co-workers find [the] conduct irritating or unwelcome.” Id.; see also Groff, 600 U.S. at 472 (“[A] coworker’s dislike of ‘religious practice and expression in the workplace’ or ‘the mere fact [of] an accommodation’ is not ‘cognizable to factor into the undue hardship inquiry.’”) (citing TWA v. Hardison, 432 U.S. 63, 89-90 (1977)); Brown v. Polk Cnty., 61 F.3d 650, 656-57 (8th Cir. 1995) (determining that the employer could be liable for failing to accommodate a department director’s “spontaneous” and “entirely voluntary” prayers that “did not occur regularly” and “occasional affirmations of Christianity” with subordinates where the employer offered only speculative concerns about “eventual polarization between born-again Christian employees and other employees” and perceptions of favoritism). While an employer must accept some degree of coworker discomfort when providing an accommodation for religious expression under Title VII, “it need not accept the burdens that would result from allowing actions that demean or degrade, or are designed to demean or degrade, members of its workforce.” Peterson, 358 F.3d at 607-08.

³⁶⁶ See, e.g., Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1078 (8th Cir. 2006) (concluding that the employer was not liable for religious harassment of the plaintiff because it took prompt and appropriate remedial action after learning of the plaintiff’s objections to her coworker’s proselytizing); see also Ervington v. LTD Commodities, LLC, 555 F. App’x 615, 617-18 (7th Cir. 2014) (concluding that the employer was not required to accommodate an employee by allowing her to distribute pamphlets that were offensive to coworkers, including material that negatively depicted Muslims and Catholics and stated that they would go to hell); Chalmers v. Tulon Co., 101 F.3d 1012, 1021 (4th Cir. 1996) (holding that the employer did not have to accommodate an employee who sent proselytizing letters to coworkers invading their privacy and criticizing their personal lives because doing so could subject the employer to possible religious harassment lawsuits).

³⁶⁷ Sassaman v. Gamache, 566 F.3d 307, 311-12 (2d Cir. 2009) (concluding that a male supervisor established a prima facie case of sex discrimination when he presented evidence showing that he was terminated after being accused of sexual harassment by a female employee and was told by his supervisor that “you probably did what she said you did because you’re male and nobody would believe you anyway”).

³⁶⁸ As to federal employers, the EEOC’s Promising Practices for Preventing Harassment in the Federal Sector recommends that agencies promptly, thoroughly, and impartially investigate alleged harassment and take immediate and appropriate corrective action even if the complainant or alleged victim does not want the agency to investigate or correct the alleged harassment. EEOC, Promising Practices for Preventing Harassment in the Federal Sector, at Part B n.28, https://www.eeoc.gov/federal-sector/reports/promising-practices-preventing-harassment-federal-sector#_ftn28

³⁶⁹ Some courts have suggested that it may be lawful to honor such a request in some circumstances, but that it may be necessary to take corrective action, despite a complainant’s wishes, if harassment is severe. See Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1186 (9th Cir. 2005) (concluding that the employer acted reasonably in not investigating a complaint where the complainant said he wanted to handle the situation himself and failed to indicate the severity of the harassment, though the employer might have a duty to take corrective action in other circumstances, despite a complainant’s wishes), amended by 433 F.3d 672 (9th Cir. 2006), amended by 436 F.3d 1050 (9th Cir. 2006); Torres v. Pisano, 116 F.3d 625, 639 (2d Cir. 1997) (concluding that, although there is a point at which “harassment becomes so severe that a reasonable employer simply cannot stand by, even if requested to do so by a terrified employee,” the employer acted reasonably here in honoring an employee’s request to keep the matter confidential and not take action until a later date, where the employee had recounted only a few relatively minor incidents of harassment).

³⁷⁰ See Torres, 116 F.3d at 639 (stating that the employer most likely could not honor a single employee’s request not to take action if other workers were also being harassed).

³⁷¹ Employers may hesitate to set up such a mechanism due to concern that it may create a duty to investigate anonymous complaints, even if based on mere rumor. To avoid any confusion as to whether a complaint through such a phone line or website triggers an investigation, the employer should make it clear that the person who receives the inquiry is not a management official and can only answer questions and provide information. An investigation will proceed only if a complaint is made through the internal complaint process or if management otherwise learns about potential harassment.

³⁷² For a discussion of how to determine whether an individual is an employee of the employment agency, the client, or both, refer to EEOC, Notice No. 915.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997), 1997 WL 33159161, at *5-6, https://www.eeoc.gov/laws/guidance/enforcement-guidance-application-eeo-laws-contingent-workers-placed-temporary.

³⁷³ See, e.g., EEOC v. Glob. Horizons, Inc., 915 F.3d 631, 642 (9th Cir. 2019) (stating that a defendant employer may be liable for a joint employer’s conduct but only if the defendant knew or should have known about the other employer’s conduct and “failed to undertake prompt corrective measures within its control” (quoting EEOC, Notice No. 915.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997), 1997 WL 33159161, at *11, https://www.eeoc.gov/laws/guidance/enforcement-guidance-application-eeo-laws-contingent-workers-placed-temporary)); Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 414-16 (4th Cir. 2015) (holding that the defendant, an auto parts manufacturer, exercised sufficient control over a temporary worker to be considered her joint employer and therefore the defendant could be held liable for sexual harassment and retaliation experienced by the plaintiff while working at the defendant’s facility).

³⁷⁴ Glob. Horizons, 915 F.3d at 641-42 (explaining that where a client was aware of discrimination and could have taken corrective action to stop it, the client may be liable).

³⁷⁵ See id. (holding that two joint employers could be held liable for the same hostile environment if both knew or should have known of it and both had the ability to take corrective action); Magnuson v. Peak Tech. Servs., 808 F. Supp. 500, 511-14 (E.D. Va. 1992) (where the plaintiff was subjected to sexual harassment by her supervisor during a job assignment, three entities could be found liable: the staffing firm that paid her salary and benefits, the automobile company that contracted for her services, and the retail car dealership to which she was assigned; the staffing firm and automobile company were held to the standard for harassment by non-employees, under which an entity is liable if it had actual or constructive knowledge of the harassment and failed to take immediate and appropriate corrective action within its control); cf. Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 229 (5th Cir. 2015) (“A staffing agency is liable for the discriminatory conduct of its joint-employer client if it participates in the discrimination, or if it knows or should have known of the client’s discrimination but fails to take corrective measures within its control.”) (ADA discriminatory termination case); Whitaker v. Milwaukee Cnty., 772 F.3d 802, 811-12 (7th Cir. 2014) (“The firm also is liable if it knew or should have known about the client’s discrimination and failed to undertake prompt corrective measures within its control.” (quoting EEOC, Notice No. 915.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997))) (emphasis in original).

³⁷⁶ See Mullis v. Mechs. & Farmers Bank, 994 F. Supp. 680, 686 (M.D.N.C. 1997) (holding a temporary agency may be liable for harassment at a client’s workplace where the employee complained to the temporary agency and the temporary agency made no investigation into or attempt to remedy the situation).

³⁷⁷ As discussed supra at section IV.C.3.b.ii(a) and section IV.C.3.b.ii(b), reassigning an employee who complains about harassment will generally not be an appropriate remedial measure and could possibly constitute retaliation. However, reassignment may be the only feasible option in circumstances where a temporary agency lacks control over the alleged harasser or workplace.

³⁷⁸ See, e.g., Ellis v. Houston, 742 F.3d 307, 318, 320-22 (8th Cir. 2014) (observing that harassment of Black correctional officers working on the same shift was directed at them as a group and that each of the officers became aware of any harassment experienced by the others).

³⁷⁹ EEOC v. Hill Country Farms, Inc., No. 3:11-cv-00041 (S.D. Iowa May 1, 2013), ECF No. 92; Press Release, EEOC, Jury Awards $240 Million for Long-Term Abuse of Workers with Intellectual Disabilities (May 1, 2013), https://www.eeoc.gov/newsroom/jury-awards-240-million-long-term-abuse-workers-intellectual-disabilities; see also Dan Barry, The ‘Boys’ in the Bunkhouse, N.Y. Times, Mar. 9, 2014, https://www.nytimes.com/interactive/2014/03/09/us/the-boys-in-the-bunkhouse.html.

³⁸⁰ This example is adapted from the facts in Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014).

³⁸¹ Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977) (stating that a pattern-or-practice claim required the government to establish that “racial discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice”); see also EEOC v. Pitre Inc., 908 F. Supp. 2d 1165, 1178-79 (D.N.M. 2012) (denying the defendant’s motion to dismiss and permitting EEOC to proceed to jury trial under pattern-or-practice method of proof); EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 990 F. Supp. 1059, 1069-70 (C.D. Ill. 1998) (concluding that a pattern or practice of sexual harassment could be established by evidence that the employer regularly tolerated unlawful sexual harassment at its auto assembly plant); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 888 (D. Minn. 1993) (concluding that the employer’s tolerance of a sexually hostile environment at a mine and processing plant made sexual harassment of women the “standard operating procedure”).

³⁸² Mitsubishi, 990 F. Supp. at 1074; see also EEOC v. Dial Corp., 156 F. Supp. 2d 926, 946-47 (N.D. Ill. 2001) (stating that pattern-or-practice liability turns not on the particularized experiences of individual claimants but on the landscape of the total work environment).

³⁸³ EEOC v. Int’l Profit Assocs., Inc., No. 01 C 4427, 2007 WL 3120069, at *17 (N.D. Ill. Oct. 23, 2007) (holding that the EEOC was required to establish that sexual harassment that occurred at the worksite during the relevant time period, taken as a whole, was sufficiently severe or pervasive that a reasonable woman would have found the work environment hostile or abusive).

³⁸⁴ EEOC v. Glob. Horizons, Inc., 7 F. Supp. 3d 1053, 1058-63 (D. Haw. 2014).

³⁸⁵ See generally Mitsubishi, 990 F. Supp. at 1075.

After an employer’s responsibility to take overarching action has been established, employees’ entitlement to individual relief is determined on a case-by-case basis. Id. at 1077.

³⁸⁶ This example is adapted from the facts in EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001).

³⁸⁷ Proposed Enforcement Guidance on Harassment in the Workplace, 88 Fed. Reg. 67,750 (Oct. 2, 2023), https://www.federalregister.gov/d/2023-21644.  The proposed guidance also was posted prominently on the EEOC’s website at www.eeoc.gov.