PROPOSED Enforcement Guidance on Harassment in the Workplace

^[1] 477 U.S. 57 (1986).

^[2] See EEOC, All Charges Alleging Harassment (Charges filed with EEOC) FY 2010-FY 2022, https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0 (last visited July 17, 2023); EEOC, Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2022, https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0 (last visited July 17, 2023).

^[3] See, e.g., Laura Kusisto, Weinstein Verdict Signals Cultural Shift on Sexual Assault, Wall Street Journal, Feb. 25, 2020, https://www.wsj.com/articles/weinstein-verdict-signals-cultural-shift-on-sexual-assault-11582664912; see also The Associated Press, #MeToo poll: Many in US more willing to call out misconduct, The Associated Press, Oct. 15, 2021, https://apnews.com/article/sexual-misconduct-metoo-79688da3a0c3519d2a76b5b6e6b23ba7 (noting that thirty-five percent of Americans say that sexual misconduct is an “extremely” or “very” serious problem in the workplace, and forty-seven percent of Americans say it is a “somewhat” serious problem in the workplace).

The EEOC’s 2016 publication of the report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, discussing workplace risk factors, potential responses to those factors, and other recommendations, may serve as a resource to employers and other covered entities. See generally 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.

^[4] See, e.g., EEOC v. T.M.F Mooresville, LLC, No. 5:21-cv-00128 (W.D.N.C. consent decree entered Aug. 24, 2022) ($60,000 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. Chicago Meat Auth., Inc., No. 1:18-cv-01357 (N.D. Ill. consent decree entered Oct. 7, 2021) ($1.1 million settlement of lawsuit alleging racial harassment, including racial epithets and slurs; hiring discrimination; and retaliation against Black and African American employees and applicants); EEOC v. CCC Grp., 1:20-cv-00610 (N.D.N.Y. consent decree entered Aug. 9, 2021) ($420,00 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. Kimco Staffing Servs., Inc., No. 5:19-cv-01838 (C.D. Cal. consent decrees entered May 25, 2021 and June 22, 2021) (settlements requiring Ryder Integrated Logistics, Inc. and Kimco Staffing Services, Inc. to each pay $1 million to Black employees allegedly subjected to racial harassment—which included racial slurs and epithets such as “Negra Fea,” “Aunt Jemima,” “black girl,” and “black boy”—and other disparate treatment and retaliation); EEOC v. Nabors Corp. Serv., Inc., No. 5:16-cv-00758 (W.D. Tex. consent decree entered Nov. 12, 2019) ($1.2 million 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); EEOC v. Master Marine, Inc., No. 1:18-cv-00269 (S.D. Ala. consent decree entered Nov. 30, 2018) ($102,000 settlement on behalf of an Asian welder and three Black employees who were allegedly subjected to racially derogatory slurs, including daily use of slurs such as “n____r,” “monkey boy,” “n____r boy,” “noodle-eating bastard,” and “rice-boy,” in addition to other discriminatory conduct); EEOC v. Cudd Energy Servs., No. 4:15-cv-00037 (D.N.D. consent decree entered July 19, 2018) ($39,900 settlement on behalf of an Asian employee who was allegedly subjected to harassment based on race, including being called “little Asian” and “Chow” based on an Asian character in the movie “Hangover” and being physically assaulted by a supervisor); EEOC v. Laquila Grp., 1:16-cv-05194-PK (E.D.N.Y. consent decree entered Dec. 1, 2017) ($625,000 settlement on behalf of six Black construction workers allegedly routinely harassed by white foremen, including slurs such as “gorilla” and “monkey”).

^[5] 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.

^[6] 29 C.F.R. § 1695.2(c)(7)(i).

^[7] The federal EEO laws do not prohibit employers from issuing more expansive internal policies prohibiting behavior that does not amount to unlawful harassment, for example, bullying that falls short of unlawful harassment. For a description of unwelcome conduct 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 3, 54-55 (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf.

^[8] Discrimination against persons of a particular racial group, for example, Asian Americans, also may constitute harassment based on national origin in certain factual scenarios. Harassment based on color also may constitute harassment based on race or national origin in certain circumstances. Harassment based on national origin is described below.

^[9] See, e.g., Laurent-Workman v. Wormuth, 54 F.4th 201, 212 (4th Cir. 2022) (holding that the plaintiff had 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 a_s,” and stated he was “tired of you people” and again referred to the plaintiff as a 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 a “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 African American 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/policy/docs/race-color.html#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., 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, L.L.C., 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 New York, No. CV-02-1868 (SJF)(LB), 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).

^[12] This example is based on the facts in EEOC v. Rugo Stone, LLC, No. 1:11-cv-915 (E.D. Va. consent decree entered Mar. 6, 2012).

^[13] 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”).

^[14] 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___h,” 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”).

^[15] Cf. 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).

^[16] 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).

^[17] 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).

^[18] 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).

^[19] See, e.g., EEOC v. United Health Programs of Am., Inc., No. 1:14-cv-3673 (KAM), 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).

^[20] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (stating that sexual 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 sexual harassment consisted of repeated touching, vulgar comments, propositions, and physical aggression).

^[21] 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 sexually 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).

^[22] See EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 845 (9th Cir. 2005) (stating that a “pattern of abuse in the workplace directed at women, whether or not it is motivated by ‘lust’ or by a desire to drive women out of the organization, can violate Title VII”); see also infra Example 12: Comparative Evidence Gives Rise to Inference that Harassing Conduct Is Based on a Protected Characteristic.

^[23] See Walsh v. Nat’l Computer 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-KOB, 2019 WL 4245688, at *2 (N.D. Ala. Sep. 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).

^[24] 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 ....”).

^[25] 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. Houston Funding II, Ltd., 717 F.3d 425, 430 (5th Cir. 2013) (holding that Title VII prohibits discharging an employee because she is lactating).

^[26] See EEOC, Enforcement Guidance on Pregnancy Discrimination and Related Issues § I.A.3.d (2015), https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#IA3d (stating that Title VII prohibits discrimination against a woman because she uses contraceptives and citing cases).

^[27] See id. § I.A.4.c, https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#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).

^[28] See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020); 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 decisions regarding federal employees, the Commission has also 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).

^[29] Bostock itself concerned allegations of discriminatory discharge, but the Supreme Court’s reasoning in the decision logically extends to claims of harassment. Indeed, 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., 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-JPS-JPS, 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 762, 766-77 (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, 140 S. Ct. 1731; 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).

^[30] See, e.g., Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154, 173 (D. Md. 2022); Brooks v. Temple Univ. Health Sys., Inc., No. 21-1803, 2022 WL 1062981, at *12 (E.D. Pa. April 8, 2022).

^[31] See, e.g., Roberts v. Glenn Indus. Grp., Inc., 998 F. 3d 111, 121 (4th Cir. 2021) (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).

^[32] 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”).

^[33] Courts—even prior to the Supreme Court’s Bostock decision—have viewed evidence of intentional misgendering as supportive of a hostile work environment claim. 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 misgendered); Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744, 758 (S.D. Ohio 2018) (same). The Commission is not aware of any cases in which a court has held that evidence of misgendering is irrelevant to a hostile work environment claim. There are some cases in which allegations of misgendering were not considered by the court in determining whether the plaintiff had established a hostile work environment claim, but not because the court believed that misgendering is irrelevant to such a claim. See, e.g., Barreth v. Reyes 1, Inc., No. 5:19-cv-00320-TES, 2020 WL 4370137, at *7 (M.D. Ga. July 29, 2020) (holding that the allegation was a “naked assertion” devoid of the factual detail necessary to meet general pleading standards); Milo v. Cybercore Techs., LLC, No. SAG-18-3145, 2020 WL 134537, at *7 (D. Md. Jan 13, 2020) (finding that the plaintiff’s allegations of misgendering were not specific enough to allow the court to “determine the nature and extent of the harassment”); Versace, 2015 WL 12820072, at *5-6 (holding that certain of the plaintiff’s allegations were untimely, and that others were “conclusory and generalized”).

In federal sector cases, 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).

^[34] 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). Similarly, courts have found, under Title IX, that denial of access to a bathroom consistent with one’s gender identity is sex discrimination. See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d. 586, 616 (4th Cir. 2020); Whitaker ex. rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1049-50 (7th Cir. 2017); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221-222 (6th Cir. 2016) (per curiam). But see Adams by and through Kasper v. Sch. Bd., 57 F.4th 791, 811-15 (11th Cir. 2022) (en banc). 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 common women’s restroom on account of her gender identity).

^[35] This example is based on the facts in Triangle Doughnuts, LLC, 472 F. Supp. 3d 115 (E.D. Pa. 2020).

^[36] 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 40 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 40 or over).

^[37] 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).

^[38] See, e.g., Wilson v. Cox, 753 F.3d 244, 247-49 (D.C. Cir. 2014) (ruling that a reasonable factfinder could conclude that discriminatory intent motivated the employer’s decision to abolish a resident employee program and terminate the plaintiff where the official responsible for abolishing the program stated that the residents “didn’t come here to work, [they] came here to retire” and expressed concern that older guards tended to fall asleep on duty, but he had only heard of one guard falling asleep on duty); 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).

^[39] 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.” Id. § 12102(1).

^[40] 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).

^[41] 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] ‘crippled crooked self, going down the hall hugging the walls’”).

^[42] See, e.g., 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,” supervised their work more closely, and segregated 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).

^[43] 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).

^[44] 42 U.S.C. § 12102(1)(A)-(B) (including within the definition of disability a record of a physical or mental impairment).

^[45] 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 48 through 50.

^[46] 42 U.S.C. § 2000ff(4)(A).

^[47] 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); 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); cf. Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 571-72 (3d Cir. 2002) (holding that the ADA prohibits retaliation against an individual based on the misperception that he had engaged in protected activity, reasoning that “[w]hat is relevant is that the [individual] . . . was treated worse than he otherwise would have been for reasons prohibited by the statute”). 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).

^[48] See, e.g., Frith v. Whole Foods Mkt., Inc., 38 F.4th 263 (1st Cir. 2022) (concluding that claims alleging discrimination based on interracial association “are fundamentally consistent with Bostock [v. Clayton County, 140 S. Ct. 1731 (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, 939 F.3d at 467-70 (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).

^[49] See, e.g., Zarda 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, 140 S. Ct. 1731 (2020).

^[50] See, e.g., Barrett, 556 F.3d at 513-14 (holding that white employees could claim racial harassment based on their friendship with African American coworkers); Chacon v. Ochs, 780 F. Supp. 680, 682 (C.D. Cal. 1991) (holding that Title VII encompasses a claim of harassment against a non-Hispanic woman based on her marriage to a Hispanic man); 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).

^[51] 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).

^[52] 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 Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994) (recognizing a claim of intersectional discrimination against an Asian woman); Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032-34 (5th Cir. 1980) (recognizing Black women as a “distinct protected subgroup”).

^[53] 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).

^[54] 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”).

^[55] 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, and was very well groomed, crossed his legs, and discussed topics like art, music, and interior design); Kang v. U. Lim Am., Inc., 296 F.3d 810 (9th Cir. 2002) (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 Cty. Pub. Sch., 580 F. Supp. 3d 154 (D. Md. 2022) (harassment of transgender teacher; employer’s response included trying to hide plaintiff’s gender identity by restricting her clothes, footwear, and make-up and nail polish); Membreno v. Atlanta, No. 19-cv-00369-PX, 2021 WL 409746 (D. Md. Feb. 5, 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 Donuts, 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. Pennsylvania Steel Co., 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”); 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).

^[56] 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”).

^[57] 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).

^[58] See, e.g., Price Waterhouse, 490 U.S. at 250.

^[59] Any retaliatory conduct can be challenged under the standard for retaliation set forth in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). If the harassing conduct might deter a reasonable person from engaging in protected activity, even if it was insufficiently severe or pervasive to alter the terms and conditions of employment to create a hostile work environment, there would be actionable retaliation, assuming that the other requirements for showing retaliation are met. See, e.g., Martinelli v. Penn Millers Ins. Co, 269 F. App’x 226, 230 (3d Cir. 2008) (observing that after Burlington Northern, an employee claiming “retaliation by workplace harassment” is “no longer required to show that the harassment was severe or pervasive”).

^[60] The causation principles discussed in this enforcement guidance focus on hostile work environment claims. As discussed below in § III.A, however, unlawful harassment can also involve an explicit change to a term or condition 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.

^[61] 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).

^[62] As discussed below in § III.B, even if harassment is based on a protected characteristic, it is not unlawful unless it is sufficiently severe or pervasive to create a hostile work environment. In addition, as discussed in § IV, James’s employer’s liability depends on the relationship of the harasser to the employer and the nature of the hostile work environment.

^[63] 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’”).

^[64] 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.

^[65] 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[__]ch,’ . . . constitute[s] harassment based upon sex” (omissions and second alternation in original) (quoting Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229 (1st Cir. 2007))); Arrieta-Colon v. Wal-Mart Puerto Rico, 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”).

^[66] 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).

^[67] 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).

^[68] This example is based on the facts in Mangel v. Graham Packaging Co., L.P., No. 14-CV-0147-BR, 2016 WL 1266257 (W.D. Pa. Apr. 1, 2016).

^[69] 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).

^[70] 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”).

^[71] 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).

^[72] See, e.g., Price Waterhouse, 490 U.S. at 250.

^[73] 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 55.

^[74] 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”).

^[75] 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).

^[76] 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”).

^[77] This example is based on the facts in EEOC v. Boh Bros. Construction Co., LLC, 731 F.3d 444, 449-50, 457-60 (5th Cir. 2013).

^[78] 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).

^[79] 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).

^[80] 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”).

^[81] This example is based on the facts in Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012).

^[82] 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 gender-neutral in isolation may appear gender-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”).

^[83] See, e.g., Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (concluding that facially neutral harassment was 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).

^[84] This example is based on 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).

^[85] 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).

^[86] 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”).

^[87] The facts in the example were adapted from National Education Ass’n, Alaska, 422 F.3d at 842-44.

^[88] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998).

^[89] 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”).

^[90] Boh Bros., 731 F.3d at 456.

^[91] See, e.g., Oncale, 523 U.S. at 80 (noting that a fact finder might reasonably find harassment based on sex if, for example, “a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace”).

^[92] Id. at 79-81.

^[93] See, e.g., 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination based on race, color, religion, sex, or national origin with respect to “terms, conditions, or privileges of employment”).

^[94] 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. 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.

^[95] See Meritor Sav. Bank, FSB, 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”).

^[96] 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).

^[97] 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).

^[98] Gregory v. Daly, 243 F.3d 687, 698 (2d Cir. 2001). In Ellerth, 524 U.S. at 751-54, 765, the Supreme Court questioned the utility of the “quid pro quo” designation for purposes of assigning liability, holding instead that employers are vicariously liable for a hostile work environment created by supervisor harassment if it culminates in a tangible employment action. A “tangible employment action” means a “significant change in employment status” that requires an “official act” of the employer. Id. at 761-62. For a detailed discussion of “tangible employment action,” see § IV.B.2., below.

The Supreme Court has explained that the concept of a “tangible employment action” is intended “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 antiretaliation provision. Burlington N., 548 U.S. at 65.

^[99] 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); 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).

^[100] Ellerth, 524 U.S. at 753-54.

^[101] See § III.B.1, below (discussing how to assess severity of harassment).

^[102] Meritor Sav. Bank, FSB, 477 U.S. at 67 (1986) (alteration in original) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

^[103] Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).

^[104] For a discussion of when conduct is sufficiently severe or pervasive to create a hostile work environment, see § III.B., below. For a discussion of when conduct creates an objectively and subjectively hostile work environment, see § III.C., below.

^[105] Section III.D.1., below, discusses how to assess timeliness and how to determine whether conduct is sufficiently related to be part of the same hostile work environment claim.

^[106] Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB, 477 U.S. at 64).

^[107] Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012) (citing 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”).

^[108] Harris, 510 U.S. at 21.

^[109] See, e.g., id. at 22-23 (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”).

^[110] Id. at 23.

^[111] 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.”).

See § III.D.1, for a discussion of how to determine whether conduct is sufficiently related to be considered part of the same hostile work environment claim.

^[112] This example is based generally on the facts in Preuss v. Kolmar Labs., Inc., 970 F. Supp. 2d 171 (S.D.N.Y. 2013).

^[113] Harris, 510 U.S. at 21; Hall v. City of Chicago, 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))).

^[114] 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))).

^[115] 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”).

^[116] 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, 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 the Suders holding that a hostile work environment claim is a “lesser included component” of the “graver claim” of constructive discharge was “no mere dictum”). “[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.

^[117] Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998); see also Harris, 510 U.S. at 22 (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”); see also Ford v. Jackson Nat. 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”).

^[118] Harris, 510 U.S. at 22-23.

^[119] This example is based on the facts in Gallagher, 567 F.3d at 266-69.

^[120] 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).

^[121] 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, 12 F.3d at 675 (stating that a supervisor’s use of “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)).

^[122] 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).

^[123] See, e.g., Warf v. U.S. Dep’t of Veterans Affairs, 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, 224-225 (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 180-184 and accompanying text.

^[124] See 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 & Family 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).

^[125] 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.”).

^[126] 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).

^[127] 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).

^[128] See, e.g., Turner v. The 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).

^[129] See 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).

^[130] 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).

^[131] 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. Houston, 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”).

^[132] 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”).

^[133] 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)).

^[134] 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[__]t,’ ‘wh[__]e,’ and ‘b[___]h,’ . . . 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 Philadelphia, 571 F. Supp. 3d 455, 464 (E.D. Pa. 2021) (stating that “[t]he term ‘f____t’ 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)).

^[135] 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 Chicago, 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 (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, 161-163 (5th Cir. 2007) (concluding that there was a genuine issue of material fact as to whether the complainant’s supervisor created a hostile work environment where, although not all of the supervisor’s phone calls to the complainant carried sexual overtones, the frequency of unwanted attention over a four-month period amounted to pervasive harassment).

^[136] 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”).

^[137] 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).

^[138] 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).

^[139] This example is based on the facts in EEOC v. Prospect Airport Services, Inc., 621 F.3d at 993-96, 1000-01.

^[140] This example is based on 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).

^[141] 510 U.S. 17, 21-22 (1993).

^[142] 477 U.S. 57, 68 (1986).

^[143] 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”).

^[144] Meritor Sav. Bank, FSB, 477 U.S. at 68.

^[145] 510 U.S. at 21-22.

^[146] 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).

^[147] 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).

^[148] 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 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”).

^[149] 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).

^[150] 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).

^[151] 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).

^[152] 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).

^[153] 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).

^[154] 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).

^[155] 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).

^[156] 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 Puerto Rico, 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).

^[157] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

^[158] 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).

^[159] Oncale, 523 U.S. at 82.

^[160] 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)).

^[161] 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).

^[162] Jenkins v. Univ. of Minn., 838 F.3d 938, 945-46 (8th Cir. 2016) (Ph.D. 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).

^[163] 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).

^[164] 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.”).

^[165] 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.”).

^[166] 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).

^[167] 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).

^[168] 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__e,” “b___h,” and “c__t,” 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 gender and thus could have created an abusive working environment).

^[169] 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 § III.C.1, supra.

^[170] 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 Puerto Rico, 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), 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).

^[171] See Webb-Edwards v. Orange Cnty. Sheriff’s Office, 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 Human 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).

^[172] 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).

^[173] See EEOC, Compliance Manual Section 12: Religious Discrimination § 12‑III.B.2.b (2021), http://www.eeoc.gov/policy/docs/religion.html#_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).

^[174] 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).

^[175] Morgan, 536 U.S. at 120. Compare Ford v. Jackson Nat. Life Ins. Co., 45 F.4th 1202, 1229 (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 Ford 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, 167 (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___h” 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. Chicago 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).

^[176] 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”).

^[177] See 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/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”).

^[178] This example is based on the facts in Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383, 385-87 (7th Cir. 2007).

^[179] This example is based on the facts in McGullam, 609 F.3d at 72-74.

^[180] See note 123 and accompanying text.

^[181] 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 a male sales floor employees that was gender-specific, derogatory, and humiliating—including vulgar sexual comments, pornographic images of women, and gender 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”).

^[182] 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).

^[183] 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).

^[184] These facts are adapted from Rodgers v. Western-Southern Life Insurance Co., 12 F.3d 668, 670-72 (7th Cir. 1993).

^[185] 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”).

^[186] Sophie also could file an EEOC charge alleging that she was subjected to unlawful retaliation based on Christian’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.

[187] 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).

[188] 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).

[189] 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).

^[190] 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 both conduct inside and conduct outside the workplace and both conduct during and conduct after business hours).

[191] 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).

^[192] 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).

^[193] This example is based on the facts in Fisher, 192 F. Supp. 3d at 326-27.

^[194] 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).

^[195] 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”).

^[196] Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (“Negligence sets a minimum standard for employer liability under Title VII.”).

^[197] 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).

^[198] Sharp v. City of Houston, 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 College, 164 F.3d 534, 540 n.4 (10th Cir. 1998) (“The Supreme Court recognized in [Faragher] and Ellerth the continuing validity of negligence as a separate basis for employer liability.”).

^[199] See note 197 and accompanying text.

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)).

^[200] For a discussion of how to determine whether conduct is part of the same hostile work environment claim, refer to § III.D.1, supra.

^[201] 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).

^[202] 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).

^[203] 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)).

^[204] 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).

^[205] Vance v. Ball State Univ., 570 U.S. 421, 424 (2013).

As explained by the Supreme Court, an employer cannot shield itself from liability by concentrating decision making authority in a few individuals with limited ability to make independent judgments about employment decisions. Under such circumstances, the employer has effectively delegated the authority to take tangible employment actions to the lower-level employees on whose input formal decisionmakers will be required to rely. As a result, the lower-level employees will qualify as “supervisors.” Id.; see also Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 416 (6th Cir. 2021) (concluding that the plaintiff had presented sufficient facts to allow a jury to conclude that her formal supervisor had delegated supervisory authority to the harasser, a senior project manager, where the harasser was in her chain of command; she worked directly for him when she worked on his projects; and her formal supervisor was required to take the harasser’s recommendations into account and he acceded to the harasser’s requests, at least with respect to removing lower-level managers from his projects); Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 265, 272 (1st Cir. 2014); EEOC v. Autozone, Inc., 692 F. App’x 280, 283-84 (6th Cir. 2017) (per curiam).

^[206] Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998).

^[207] E.g., id. at 761; Faragher, 524 U.S. at 790.

^[208] See Vance, 570 U.S. at 437 n.9.

^[209] See Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 654-55 (5th Cir. 2002).

^[210] Kramer v. Wasatch Cnty. Sheriff’s Office, 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)).

^[211] 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).

^[212] See Wilson v. Muckala, 303 F.3d 1207, 1220-21 (10th Cir. 2002) (recognizing the apparent authority theory but finding insufficient support for the concept as to the chief of staff’s conduct where the complainant received assurances from immediate supervisors that the chief of staff exercised no authority over the complainant’s position and the complainant did not indicate that the chief of staff was in her chain of command). In Kramer, 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.

^[213] 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.”).

^[214] See, e.g., Dunn v. Wash. Cnty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005).

^[215] See, e.g., Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003).

^[216] See, e.g., Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1017 (9th Cir. 2018).

^[217] See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 914-15 (7th Cir. 2010).

^[218] 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).

^[219] See also 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).

^[220] As discussed in § IV.A, above, an employer also may be liable for harassment by a supervisor pursuant to negligence principles.

^[221] 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 § IV.B.2, above (discussing the definition of “tangible employment action”).

^[222] Ellerth, 524 U.S. at 761-62.

^[223] 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”).

^[224] As discussed above in § III.D.1, 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.

^[225] 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 supplied); 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). But see Hall v. City of Chicago, 713 F.3d 325, 335 (7th Cir. 2013) (concluding that an alleged work reassignment did not preclude the affirmative defense because it occurred at the beginning of the complainant’s tenure in the division and therefore “could not have been the culmination of anything”).

^[226] Under such circumstances, the employee also would have a claim that the denial of a raise was because of sex. See supra § III.D.1 (noting that conduct that is separately actionable also may be part of a hostile work environment claim).

^[227] 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 “discrimination the employee has suffered included a tangible employment action”).

^[228] See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998) (analyzing Ellerth’s 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).

^[229] 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).

^[230] Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Ellerth, 524 U.S. at 765.

^[231] Ellerth, 524 U.S. at 764.

^[232] 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.”).

^[233] Ellerth, 524 U.S. at 765.

^[234] 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”).

^[235] See Faragher v. City of Boca Raton, 524 U.S. 775, 809 (1998) (“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.

^[236] For further guidance on what constitutes reasonable care to prevent harassment, refer to §IV.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).

^[237] 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. School 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).

^[238] 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.

^[239] 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).

^[240] 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).

^[241] 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); Green v. MOBIS Ala., LLC, 995 F. Supp. 2d 1285, 1300 (M.D. Ala. 2014) (concluding that the employer acted reasonably to prevent sexual harassment where, among other things, its complaint procedures provided alternative avenues to report harassment in case the harasser was an employee’s supervisor); 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.”).

^[242] 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); cf. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (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); 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). Compare 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 Derry v. EDM Enters., Inc., No. 09-CV-6187-TC, 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).

^[243] 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); 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).

^[244] See, e.g., Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005) (describing a prompt investigation as a “hallmark of reasonable corrective action”) (collecting cases).

^[245] 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). 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.

^[246] See Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1145 (8th 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).

^[247] 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.

^[248] 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.”).

^[249] 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.”).

^[250] 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.”).

^[251] MacCluskey v. Univ. of Conn. Health Ctr., 707 F. App’x 44, 47 (2d Cir. 2017) (citing Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009)).

^[252] Duch, 588 F.3d at 764-66.

^[253] Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

^[254] 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.”).

^[255] See 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”).

^[256] 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).

^[257] 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-APG-NJK, 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).

^[258] 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 Office, 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 other steps would have been more effective).

^[259] 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).

^[260] 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).

^[261] 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”).

^[262] See id. (referencing a proven, effective complaint process that was available “without undue risk or expense”).

^[263] See note 242, supra.

^[264] Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001).

^[265] 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).

^[266] 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 preventative 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.”).

^[267] Barrett, 240 F.3d at 267.

^[268] 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-PRC, 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).

^[269] See Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 37 (1st Cir. 2003) (concluding that a jury could find that the 17-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. Houston 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-JMG, 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).

^[270] See EEOC v. Mgmt. Hospitality 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).

^[271] 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)).

^[272] 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).

^[273] See 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 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), http://www.eeoc.gov/policy/docs/conting.html.

^[274] As noted earlier in § IV.C.2.b, the principles discussed in this section (§ IV.3) also apply in determining whether the employer has satisfied the first prong of the Faragher-Ellerth affirmative defense.

^[275] For further discussion of the general application of the negligence standard, see notes 196 to 199 and accompanying text.

^[276] See Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). The Court in Vance stressed 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”).

^[277] 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).

^[278] 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”).

^[279] Oberweis Dairy, 456 F.3d at 717.

^[280] See § IV.B.2 above addressing the definition of a “supervisor.”

^[281] Vance, 570 U.S. at 449.

^[282] 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).

^[283] 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, at § E (2016), https://www.eeoc.gov/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf.

^[284] 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).

^[285] See, e.g., Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1186 (9th Cir. 2005).

^[286] 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” that 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.”).

^[287] See Swinton v. Potomac Corp., 270 F.3d 794, 804-05 (9th Cir. 2001) (stating that an individual’s knowledge of harassment is imputed to the employer if the individual has “‘substantial authority and discretion to make decisions concerning the terms of the harasser’s or harassee’s employment’” or if the individual has an “‘official or strong de facto duty to act as a conduit to management for complaints about work conditions’” (quoting Lamb v. Household Servs., 956 F. Supp. 1511, 1517 (N.D. Cal. 1997))); Torres v. Pisano, 116 F.3d 625, 637 (2d Cir. 1997) (stating that where the supervisor of the harasser has notice of the harassment, notice will be imputed to the employer because the “employer vested in the supervisor the authority and the duty to terminate the harassment”).

^[288] See Swinton, 270 F.3d at 804-05.

^[289] 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 v. Stratosphere Quality, LLC, 865 F.3d 922, 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).

^[290] See Torres, 116 F.3d at 636-37.

^[291] This example is based on the facts in Lambert v. Peri Formworks Systems, Inc., 723 F.3d 863 (7th Cir. 2013).

^[292] 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).

^[293] See, e.g., Okoli v. City of Baltimore, 648 F.3d 216, 224 n.8 (4th Cir. 2011). Id. at 224 (determining the employer “surely should have known” that the plaintiff’s two complaints, which contained the word harassment and addressed “unethical” and “degrading and dehumanizing” conduct, likely encompassed sexual harassment).

^[294] See Valentine v. City of Chicago, 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 (NGG) (RER), 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).

^[295] This example is based on the facts in Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009).

^[296] 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); 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); Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1307 (11th Cir. 2007) (discussing the Faragher-Ellerth affirmative defense and stating, “[t]he genius of the [defense] is that the corresponding duties it places on employers and employees are designed to stop sexual harassment before it reaches the severe or pervasive stage that amounts to discrimination that violates Title VII”). But see Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 419 (8th Cir. 2010) (“When an employee complains about inappropriate conduct that does not rise to the level of a violation of law, however, there is no liability for a failure to respond.”).

^[297] Kramer v. Wasatch Cnty. Sheriff’s Office, 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)).

^[298] 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)).

^[299] 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))).

^[300] 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).

^[301] This example is based on the facts in Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002).

^[302] 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).

^[303] 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).

^[304] See EEOC v. Mgmt. Hospitality 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))).

^[305] See Hafford v. Seidner, 183 F.3d 506, 515 (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, “Earlier action may have discouraged the later calls and other conduct toward [the employee]. Prior to [the employee] identifying the callers little was done to determine their identity, and after [the employee] identified the callers no investigation was made of the identified individuals.”).

^[306] 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).

^[307] 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); Lightbody v. Wal-Mart Stores E., L.P., No. 13-cv-10984-DJC, 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).

^[308] 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)).

^[309] This example is based on the facts in EEOC v. Boh Brothers Construction Company, L.L.C., 731 F.3d 444 (5th Cir. 2013) (en banc).

^[310] In the context of federal sector employment, to address potential Privacy Act concerns related to sharing corrective or disciplinary action with complainants, federal agencies may either: (1) maintain harassment complaint records that include information about corrective or disciplinary action by complainants’ names; or (2) ensure that the agency’s complaint records system includes a routine use permitting disclosure of corrective or disciplinary action to complainants. See generally EEOC Federal Sector Management Directive 715, EEOC MD-715 at Model Agency Title VII and Rehabilitation Acts Programs Part II.E. (2003), available at https://www.eeoc.gov/federal-sector/management-directive/section-717-title-vii.

^[311] 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.

^[312] 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”).

^[313] See EEOC, Enforcement Guidance on Retaliation and Related Issues at § II.C (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues#C._Causal; id. at Example 30 (providing example of preliminary relief granted to prohibit retaliatory transfer (citing Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986))).

^[314] 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)).

^[315] 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).

^[316] 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).

^[317] See, e.g., 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 seeTutman v. WBBM–TV, Inc./CBS, Inc.,209 F.3d 1044, 1049 (7th Cir. 2000) (“[T]he question is not whether the punishment wasproportionateto [the] offensebut whether [the employer] responded with appropriate remedial action reasonably likely under the circumstances to prevent the conduct from recurring.”).

^[318] 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).

^[319] 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 § IV.B.2, supra.

^[320] See Vance, 570 U.S. at 445-46.

^[321] 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.”).

^[322] See 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 also 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))).

^[323] See discussion of prompt and adequate investigation at § IV.C.3.b.ii(a).

^[324] See note 313 and accompanying text.

^[325] 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).

^[326] See, e.g., Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013) (stating that the determination of whether the employer is liable for harassment by non-employees requires consideration of “‘the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees’” (quoting 29 C.F.R. §1604.11(e))).

^[327] See Dunn v. Washington Cnty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005).

^[328] 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.”).

^[329] 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 anti-discrimination policy, and he remained subject to more serious sanctions if he was again accused of misconduct).

^[330] See, e.g., 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); 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).

^[331] For more information on balancing religious expression with anti-harassment measures, refer to EEOC Compliance Manual Section 12: Religious Discrimination, No. 915.063, at 12-IV C.6.a (2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_48176006345391610750058898.

^[332] 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”).

^[333] 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 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).

^[334] 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).

^[335] 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.

^[336] For a discussion of how to determine whether an individual is an employee of the temporary 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, http://www.eeoc.gov/policy/docs/conting.html.

^[337] See, e.g., EEOC v. Glob. Horizons, Inc., 915 F.3d 631, 642 (9th Cir. 2019) (stating that a defendant joint employer may be liable for a co-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, http://www.eeoc.gov/policy/docs/conting.html)); 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).

^[338] Glob. Horizons, Inc., 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).

^[339] 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); Magnuson v. Peak Technical 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).

^[340] See Mullis v. Mechanics & 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).

^[341] As discussed supra at § IV.C.3.b.ii(a). and § 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.

^[342] 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).

^[343] This example is based on the facts in Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014).

^[344] 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 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”).

^[345] 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).

^[346] 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).

^[347] EEOC v. Glob. Horizons, Inc., 7 F. Supp. 3d 1053, 1060-61 (D. Haw. 2014).

^[348] 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.

^[349] See Mitsubishi, 990 F. Supp. at 1075.

Evidence establishing a pattern-or-practice violation does not necessarily establish that any particular employee in that workplace was subjected to a hostile work environment. Courts have taken different approaches in assessing violations as to individual claimants in pattern-or-practice cases. For example, in Mitsubishi, the court concluded that establishing a pattern-or-practice violation shifts the burden of production to the employer to show that individual claimants did not find the conduct unwelcome or hostile and that it took appropriate corrective action, though the claimants retained the ultimate burden of proof on those issues. Id. at 1079, 1080-81. By contrast, in International Profit Associates, the court concluded that a pattern-or-practice violation does not give rise to a presumption that any individual claimants were subjected to unlawful harassment. Thus, for each individual claimant seeking monetary damages, the EEOC was required to prove that that particular claimant experienced sex-based harassment that a reasonable woman would find sufficiently severe or pervasive to create a hostile work environment and that the claimant subjectively perceived the harassment she experienced to be hostile. The employer, however, bore the burden of production to come forward with evidence showing that it was not negligent with respect to a particular claimant, and if the employer produced such evidence, then the burden shifted back to the EEOC to show that the employer’s steps were inadequate. 2007 WL 3120069, at *17.

^[350] This example is based on the facts in EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001).