Table of Authorities............................................................................. iii

Statement of Interest............................................................................. 1

Statement of the Issues......................................................................... 2

Statement of the Case........................................................................... 3

A. Statement of Facts....................................................................... 3

B. District Court’s Decision.......................................................... 10

Argument............................................................................................. 12

The district court misstated and misapplied the standard for an

actionable hostile work environment under Title VII.................. 12

A. The district court wrongly required Wantou to show both severe

and pervasive harassment.............................................................. 13

B. The district court erred in finding that Wantou endured neither severe nor pervasive harassment, when in fact a reasonable jury

could find both................................................................................. 16

C. The district court erred by treating the most egregious harassment cases as if they establish a baseline for recovery under Title VII.................................................................................. 22

Conclusion........................................................................................... 25

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

Abner v. Kan. City S. R.R. Co., 513 F.3d 154 (5th Cir. 2008).............. 17

Allen v. Potter, 152 F. App’x 379 (5th Cir. 2005)................................ 17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............................. 3

Badgerow v. REJ Props., Inc., 974 F.3d 610 (5th Cir. 2020)................... 3

Brooks v. Firestone Polymers, L.L.C., 70 F. Supp. 3d 816

(E.D. Tex. 2014).............................................................................. 10, 11

Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003).................... 21

Dimanche v. Mass. Bay Transp. Auth., 893 F.3d 1 (1st Cir. 2018)...... 20

EEOC v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007).............. 15

Faragher v. City of Boca Raton, 524 U.S. 775 (1998)...................... 12, 14

Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018)............... 13

Frazier v. Sabine River Auth., No. 11-00778, 2012 WL 2120731

(W.D. La. June 11, 2012)...................................................................... 20

Frazier v. Sabine River Auth. La., 509 F. App’x 370 (5th Cir. 2013).. 11, 19

Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005).............................. 20

Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320 (5th Cir. 2019).. 13, 25

Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903 (8th Cir. 2006)...................................................................................................... 18

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).............. 14, 15, 21-23, 25

Harvill v. Westward Comm’ns, L.L.C., 433 F.3d 428 (5th Cir. 2005). 14, 16

Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607 (5th Cir. 2015)............................................................................................................... 17

Hockman v. Westward Commc’ns, LLC, 407 F.3d 317 (5th Cir. 2004) 23

Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012)...... 18, 23

Lauderdale v. Tex. Dep’t of Crim. Just., 512 F.3d 157 (5th Cir. 2007) 14, 15, 20

Mayorga v. Merdon, 928 F.3d 84 (D.C. Cir. 2019).............................. 21

McKinnis v. Crescent Guardian, Inc., 189 F. App’x 307 (5th Cir. 2006)............................................................................................................... 17

Rudolph v. Huntington Ingalls, Inc., No. 1:06CV820, 2011 WL 4350941

(S.D. Miss. Sept. 15, 2011)............................................................. 11, 22

Order of Dismissal, Rudolph v. Huntington Ingalls, Inc., No. 12-60157

(5th Cir. Aug. 15, 2012)...................................................................... 22

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)............ 18

Stewart v. Rise, Inc., 791 F.3d 849 (8th Cir. 2015)............................... 13

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir. 2007). 17

United States v. Jones, 159 F.3d 969 (6th Cir. 1998)............................ 18

Vess v. MTD Consumer Grp., Inc., 755 F. App’x 404 (5th Cir. 2019). 17

Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000).............................. 17

Weller v. Citation Oil & Gas Corp., 84 F.3d 191 (5th Cir. 1996).... 24-25

West v. City of Hous., 960 F.3d 736 (5th Cir. 2020)....................... 12, 13

Wooten v. Fed. Express Corp., 325 F. App’x 297 (5th Cir. 2009)........ 24

Statute

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.... 1

§ 2000e-2(a)(1)............................................................................ 12

Rule

Federal Rule of Appellate Procedure 29(a)........................................ 2

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Appellant Yves Wantou, a black man from Cameroon, alleges that he endured a hostile work environment because of his race and/or national origin. Title VII allows hostile work environment claims based on harassment that was either “severe or pervasive.” Nonetheless, the district court required Wantou to demonstrate “severe and pervasive” harassment, and held that he could not satisfy this erroneous standard. This holding is reversible error.

Moreover, although Wantou need not prove both severe and pervasive harassment, a reasonable jury could find that he did. A jury could find that multiple coworkers continually called Wantou “chimp” or “monkey,” humiliated him by mimicking and mocking his accent in front of customers, and repeatedly made derogatory comments relating to Africa and Africans. Title VII protects individuals from having to work in discriminatorily hostile work environments such as this, even in the absence of physical threats and regardless of whether or not the abuse completely destroyed the plaintiff’s opportunity to succeed in the workplace.

The EEOC has a substantial interest in the proper interpretation of the laws it enforces. Accordingly, the EEOC files this brief pursuant to Federal Rule of Appellate Procedure 29(a).

Statement of the Issues [1]

1. Did the district court err by requiring Wantou to show severe and pervasive harassment when binding precedent requires him to show only one or the other?

2. Could a reasonable jury find that Wantou endured severe and/or pervasive harassment, even in the absence of a physical threat, where multiple coworkers continually called him a “chimp” or “monkey,” “constantly” mimicked and mocked his accent in front of customers, and “repeatedly” called him names and made derogatory comments about Africa and Africans?

Statement of the Case

A. Statement of Facts [2]

Wantou is a black man from Cameroon. ROA.52; ROA.54. In March 2015, Wal-Mart hired him as a staff pharmacist at a store in Mount Pleasant, Texas. ROA.54. The job description stated that Wantou would be responsible for providing pharmaceutical care to customers, ensuring compliance with company and regulatory requirements, and “model[ing], enforc[ing], and provid[ing] direction and guidance” to pharmacy technicians. ROA.4204. Although the lab technicians were “theoretically” under Wantou’s report, ROA.4155, Wantou testified that they “acted as if … I was actually under their report.” ROA.4155. His job description did not describe any duties connected to hiring, firing, or discipline of personnel. ROA.4204.

From the outset of his employment, Wantou testified, three of the white technicians—Ann Samples, Rayla Edwards, and Wendy Willoughby—“repeated[ly]” and “continuous[ly]” subjected him to racist comments. ROA.4152; ROA.4602. When he corrected their lab errors, he testified, they would often insult him by calling him “chimp” or “monkey.” ROA.4155. “All three of them would make those comments,” he said, “[a]nd they would act in concert … with each other.” ROA.4155. They also regularly “mimic[ked]” and “mock[ed]” his accent in front of customers. ROA.4152. He testified that they made “a lot of comments” about his negative reaction to flies, saying things like “Well, I’m sure where you come from … it’s probably fly-infested … so, therefore, I should just deal with it,” and “[F]ies are attracted by dirt. You come from a dirty place and, therefore, just deal with it.” ROA.4154-55.

Samples, Edwards, and Willoughby made these comments “so pervasive[ly],” Wantou testified, “that it would be difficult for me to pinpoint a particular time because that happened on a continuous basis.” ROA.4152; see also ROA.4153 (similar). If he had taken notes on each incident, he added, “I would have probably a pile of emails that could not even be contained … in any of the bags that I have.” ROA.4153.

In July 2015, Wal-Mart hired Shawn Shannon as a new staff pharmacist. ROA.4156. Shannon, too, was white. ROA.4617. Wantou testified that until Shannon arrived, only Samples, Edwards, and Willoughby insulted him based on his race and national origin. ROA.4156; ROA.4610. However, he said, Shannon “aligned himself with those techs, and he would act in concert with them.” ROA.4156. “Multiple times,” he testified, Shannon would call him “[y]ou African fart” and “you little African.” ROA.4156-57. Shannon’s behavior, Wantou testified, “emboldened” Samples, Edwards, and Willoughby to “persevere in that behavior that they were displaying towards me.” ROA.4156. Their behavior “wasn’t … being addressed,” he said, “and it was getting worse every day.” ROA.4156. Wantou observed that Samples, Edwards, and Willoughby “routinely” treated Shannon with more deference, support, patience, and goodwill than they showed him. ROA.4224.

Wal-Mart’s employee handbook directs employees who experience harassment “to report the incident to management through the Open Door process or contact Global Ethics.” ROA.4254. In accordance with this policy, Wantou made multiple verbal complaints over the course of three months to pharmacy manager Pascal Onyema and to Market Health and Wellness Director Steven Williams. ROA.4153-54. “I wanted to keep things informal,” he testified, “in the hope that they could be resolved in an informal way….” ROA.4153.

In late September or early October, Shannon stopped speaking to Wantou altogether. ROA.4157. This put an end to Shannon’s insults, but it also meant that Wantou was unable to communicate with Shannon when a problem arose. ROA.4157. “I can’t do my job,” he testified, “in a context where I can’t talk to another pharmacist.” ROA.4157.

Feeling he no longer had a choice, Wantou decided that “things had reached a point where they needed to be dealt with in a formal manner.” ROA.4153. He emailed Williams to protest his increasingly hostile work environment. ROA.4148. After a month had passed with no response, Wantou emailed Williams again in early November reiterating his complaints. ROA.4158-59. Williams investigated and concluded that he could not substantiate Wantou’s allegations. ROA.4160-63.

Wantou then filed a formal Global Ethics Complaint. ROA.4161; ROA.4164. Once again, he alleged that “people … committed discrimination and perpetuated … that hostile work environment.” An investigation of this new complaint also failed to substantiate Wantou’s allegations. ROA.4162. Over the course of several months, Wantou filed a total of eight internal, formal complaints. ROA.4192.[3] None of these complaints caused Wal-Mart to re-investigate the hostile work environment claim.

An April 2016 internal complaint concerned Katy Leeves, who took over as pharmacy manager after Onyema transferred to another store in January 2016. ROA.4172. Another employee who had previously worked with Leeves told Wantou that Leeves, who was white, was a “racist.” ROA.4171-72. According to Wantou, “his prediction turned out to be true.” ROA.4172.

In his April 2016 complaint, Wantou said that once when he was reprimanding Samples for having made a mistake with a prescription, Leeves yelled at him in front of customers, as loudly as she could, “Stop badgering her, stop badgering her with that, stop badgering her, leave her alone. Stop right now. Stop right now.” ROA.4621. Wantou never saw Leeves treat Shannon or any other pharmacist in that manner. ROA.4176. He explained that her behavior toward him in front of pharmacy staff “and, most importantly, customers” made him feel “highly humiliated and made to be inferior.” ROA.4621.

“Such unprofessional conduct in front of customers,” Wantou told Wal-Mart, “is highly detrimental to our operations as a business as it gives customers a very negative image of the pharmacy manager normally responsible for displaying the best possible image.” ROA.4621. By not addressing Leeves’s conduct, Wantou said, Wal-Mart “could have just emboldened her, just encouraged her to do that even further.” ROA.4177.

In November 2016, Wal-Mart terminated Wantou for administering vaccines outside the minimum age requirement. ROA.10756. Wantou filed a charge of discrimination with the EEOC, alleging discrimination on the basis of race, color, national origin, and retaliation. ROA.4229. He stated that he had been subjected to a hostile work environment and explained, “I reported to upper management several times that pharmacy techs made jokes about my accent, treated me differently than Caucasian Pharmacist, constantly harassed me, and made disparaging remarks about my culture and National Origin, to no avail.” ROA.4229.

After receiving a notice of right to sue, Wantou filed this Title VII lawsuit. ROA.1. He alleged in relevant part that Wal-Mart was liable for allowing a discriminatory hostile work environment. ROA.677. Wal-Mart moved for summary judgment, arguing that Wantou did not complain of severe or pervasive harassment. ROA.4119. Additionally, Wal-Mart asserted that only one of Wantou’s complaints mentioned a hostile work environment. ROA.4120-21. Acknowledging its responsibility “to take immediate and appropriate corrective action,” ROA.4119, Wal-Mart maintained that it had responded appropriately by fully investigating all of Wantou’s allegations. ROA.4119; ROA.4120-4121.

Wantou opposed summary judgment, arguing in relevant part that being “constantly harassed by his coworkers who incessantly made insulting and humiliating comments related to [his] race and national origin” did constitute severe or pervasive harassment. ROA.6887. Moreover, Wantou argued, Wal-Mart did not respond appropriately to his complaints because it “failed to take any remedial action whatsoever, let alone prompt remedial action.” ROA.6888.

B. District Court’s Decision

The district court granted summary judgment to Wal-Mart on Wantou’s hostile work environment claim. ROA.10810. According to the court, “Title VII ‘was only meant to bar conduct that is so severe and pervasive that it destroys a protected classmember’s opportunity to succeed in the workplace.’” ROA.10809 (quoting Brooks v. Firestone Polymers, L.L.C., 70 F. Supp. 3d 816, 857 (E.D. Tex. 2014), aff’d, 640 F. App’x 393 (5th Cir. 2016)). “[T]herefore[,] conduct that only ‘sporadically wounds or offends but does not hinder’ an employee’s performance is not actionable.” ROA.10809 (quoting Brooks, 70 F. Supp. 3d at 857).

The district court acknowledged that Wantou was “constantly” harassed on the basis of his race and national origin. ROA.10807. However, it said, “the incidents involved no physical threat [and] there is nothing in the record showing the alleged harassment was so severe as to affect the terms or conditions of Plaintiff’s employment.” ROA.10810. Thus, the court concluded, “the conduct cited by Plaintiff, even when taken in its totality and viewed in the light most favorable to his case, falls short of the standard required for finding a hostile work environment in the Fifth Circuit.” ROA.10809 (citing Frazier v. Sabine River Auth. La., 509 F. App’x 370, 374 (5th Cir. 2013), and Rudolph v. Huntington Ingalls, Inc., No. 1:06CV820, 2011 WL 4350941, at *12 (S.D. Miss. Sept. 15, 2011)). The court noted, but did not address, Wal-Mart’s argument that it should not be held liable because it investigated each complaint and took prompt remedial action. ROA.10808.

Argument

The district court misstated and misapplied the standard for an actionable hostile work environment under Title VII.

Title VII prohibits discrimination in the “terms, conditions, or privileges of employment” based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). For coworker harassment to create a hostile work environment in violation of Title VII, an employee must show: “(1) [he] is a member of a protected class; (2) [he] suffered unwelcomed harassment; (3) the harassment was based on [his] membership in a protected class; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known about the harassment and failed to take prompt remedial action.” West v. City of Hous., 960 F.3d 736, 741 (5th Cir. 2020) (internal citation and quotation marks omitted); see also Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (explaining different liability standards for supervisor versus coworker harassment); Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 321-22 (5th Cir. 2019) (same).[4]

Here, the parties dispute the fourth element of this test—whether the alleged harassment was sufficient to "affect[] a term, condition, or privilege of [Wantou’s] employment.” West, 960 F.3d at 741. For the following reasons, a reasonable jury could find that it was.

A. The district court wrongly required Wantou to show both severe and pervasive harassment.

Title VII does not prohibit all negative interactions among employees. “’[S]imple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.'" Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Only when a workplace “is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, [is] Title VII violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations omitted). Whether conduct qualifies as sufficiently “severe or pervasive” to support liability is a fact-specific inquiry, turning on “all the circumstances.” Id. at 23.

Contrary to law, the district court required Wantou to show both severe and pervasive harassment. ROA.10809. As this Court has noted repeatedly, the “severe or pervasive” standard “is stated in the disjunctive.” Lauderdale v. Tex. Dep’t of Crim. Just., 512 F.3d 157, 163 (5th Cir. 2007); see also Harris, 510 U.S. at 21 (“severe or pervasive”); Harvill v. Westward Comm’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (“In requiring Harvill to establish that the conduct was both severe and pervasive, the district court applied the wrong legal standard.”).

This Court has explained the “severe or pervasive” standard as follows: “An egregious, yet isolated, incident can alter the terms, conditions, or privileges of employment …. Frequent incidents of harassment, though not severe, can reach the level of ‘pervasive ….’” Lauderdale, 512 F.3d at 163. Severity and pervasiveness operate on a sliding scale. “Thus, ‘the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.’” Id. (citation omitted).

To determine whether harassment is sufficiently “severe or pervasive” to violate Title VII, a court must consider the “totality of the circumstances.” EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007); see also Harris, 510 U.S. at 23 (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”). Relevant factors may include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23. The employee’s psychological response may also be relevant. Id. at 22. Nonetheless, “no single factor is required.” Id.

B. The district court erred in finding that Wantou endured neither severe nor pervasive harassment, when in fact a reasonable jury could find both.

The district court acknowledged that Wantou “was constantly harassed by his coworkers ‘who incessantly made insulting and humiliating comments related to [his] race and national origin.’” ROA.10807; see also ROA.10808 (harassment was “pervasive and continuous”). Wantou testified that these incidents “were so pervasive that it would be difficult for me to pinpoint a particular time because that happened on a continuous basis.” ROA.4152; see also ROA.4153 (similar). This evidence, standing alone, is sufficient to allow a reasonable jury to conclude that Wantou endured “pervasive” harassment on the basis of his race and/or national origin, warranting denial of summary judgment. See Harvill, 433 F.3d at 436 (“Harvill’s assertions that she was touched ‘numerous times’ instead of providing exact dates or the exact number of instances do not render her allegations so conclusory that they fail to create a genuine issue of material fact.”); McKinnis v. Crescent Guardian, Inc., 189 F. App’x 307, 310 (5th Cir. 2006) (same principle).

Moreover, the district court failed to recognize that likening a black person to an animal is an especially heinous form of harassment. Samples, Edwards, and Willoughby “continuous[ly]” called Wantou “chimp” or “monkey.” ROA.4152; ROA.4155; ROA.4602. This Court has repeatedly recognized that “monkey” is an “inflammatory racial epithet[].” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007); see also Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 612 (5th Cir. 2015) (“[I]ntentionally comparing African-Americans to apes is highly offensive such that it contributes to a hostile work environment.”); Abner v. Kan. City S. R.R. Co., 513 F.3d 154, 168 & n.74 (5th Cir. 2008) (recognizing “racially derogatory” nature of monkey comparison); Allen v. Potter, 152 F. App’x 379, 382-83 (5th Cir. 2005) (jury could find severe or pervasive harassment from comments such as “[l]ook at the monkeys” and “[d]on’t feed the monkeys”); Walker v. Thompson, 214 F.3d 615, 619-22 (5th Cir. 2000) (jury could find severe or pervasive harassment based in part on comparisons to monkeys), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Other courts concur. For example, the Sixth Circuit has noted the “prevalent” stereotype of African Americans as animals or monkeys, and has observed the “obvious” racial implications of such comparisons. United States v. Jones, 159 F.3d 969, 977 (6th Cir. 1998). The Fourth Circuit has explained, “[t]o suggest that a human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001); see also Jones v. UPS Ground Freight, 683 F.3d 1283, 1303 (11th Cir. 2012) (African American “certainly could find racist and demeaning” the placement of banana peels on his delivery truck); Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (“Primate rhetoric has been used to intimidate African-Americans and monkey imagery has been significant in racial harassment in other contexts as well.”).

The district court wrongly relied on an unpublished opinion to diminish the impact of such severe and offensive language, and did so without fully understanding the facts of that case. See ROA.10809 (citing Frazier, 509 F. App’x at 374). Mistaking this Court’s summary of the evidence as a complete picture of the facts, the district court interpreted Frazier as “holding that a co-worker’s use of the words ‘[n****er]’ and ‘Negreet,’ in plaintiff’s presence, as well as a co-worker’s ‘noose gesture,’ were not severe or pervasive enough to establish a prima facie case for hostile work environment.” ROA.10809. But, as the Frazier Court was aware when it affirmed the award of summary judgment, the “total record” before the district court revealed a more complex factual picture. 509 F. App’x at 374.

According to the district court’s decision in Frazier, the coworker who used the n-word in Frazier’s presence immediately apologized to him, and the coworker who discussed the town of Negreet never used the n-word. Moreover, Frazier stated that he knew his coworkers were “joking with themselves” when one of them made a noose and acted as if he was going to put it around a white coworker’s neck. Frazier v. Sabine River Auth., No. 11-00778, 2012 WL 2120731, at *4-*5 (W.D. La. June 11, 2012). Thus, Frazier alleged only a few offensive incidents, all of which were tempered by circumstances specific to that case.[5]

Here, in addition to the egregious comparisons to chimps and monkeys, Samples, Edwards, and Willoughby made “a lot of comments” about Wantou’s negative reaction to flies, telling him that Africa was “probably fly-infested” and “a dirty place,” so he should just deal with it. ROA.4154-55. They also “constantly” mimicked and mocked Wantou’s accent in front of customers. ROA.4152. See Dimanche v. Mass. Bay Transp. Auth., 893 F.3d 1, 9 (1st Cir. 2018) (mimicking and mocking Haitian accent is evidence of racial harassment under 42 U.S.C. § 1981); Galdamez v. Potter, 415 F.3d 1015, 1023-24 (9th Cir. 2005) (offensive comments about Honduran accent is evidence of national-origin harassment); Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 799-801 (8th Cir. 2003) (mocking of Hispanic employee’s accent is evidence of national-origin harassment); cf. Mayorga v. Merdon, 928 F.3d 84, 93-95 (D.C. Cir. 2019) (evidence that decisionmakers mocked plaintiff’s accent could support finding that denial of promotion was discriminatory).

Here, the mimicking and mocking was especially offensive because it occurred in front of customers. As Wantou explained when he complained about Leeves’s harassment, “unprofessional conduct in front of customers is highly detrimental to our operations as a business as it gives our customers a very negative image of the pharmacy manager normally responsible for displaying the best possible image.” ROA.4621.

Moreover, Shannon—Wantou’s fellow pharmacist—emboldened and amplified the coworkers’ harassment. Shannon called Wantou an “African fart” and “you little African” on “multiple” occasions. ROA.4156-57. Eventually, he stopped speaking to Wantou altogether, making it harder for Wantou to do his job. ROA.4157; cf. Harris, 510 U.S. at 23 (court may consider frequency of challenged conduct and whether it “unreasonably interferes with an employee’s work performance”).

C. The district court erred by treating the most egregious harassment cases as if they establish a baseline for recovery under Title VII.

Notwithstanding the Supreme Court’s instruction that “no single factor is required,” Harris, 510 U.S. at 23, the district court wrongly emphasized that “the incidents involved no physical threat.” ROA.10810. The court relied on a non-binding district court opinion for its apparent assumption that this factor is of special importance. ROA.10809 (citing Rudolph, No. 1:06CV820, 2011 WL 4350941). Rudolph, however, sheds no light on the proper interpretation of Title VII. There, the plaintiff produced evidence of graffiti saying, “Kill all [n****ers]” and “You don’t have to use a rope to kill a [n****er]. There’s a truck and a chain.” Rudolph, 2011 WL 4350941, at *11-*12. Remarkably, the district court in Rudolph held that this graffiti did not constitute a physical threat. This Court dismissed the pro se appeal for lack of jurisdiction, Order, Rudolph v. Huntington Ingalls, Inc., No. 12-60157 (Aug. 15, 2012), and never had the opportunity to correct the district court’s errors.

Physical threats may certainly support the existence of a hostile work environment, but they are not indispensable elements of such a claim. What matters is only whether the offensive conduct is sufficiently severe or pervasive, viewed as a whole, to create an abusive work environment. See Harris, 510 U.S. at 23 (“no single factor is required”); Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004) (same).

In ruling or implying that physical threats are required to establish a hostile work environment claim, the district court assumed, incorrectly, that the most egregious cases and conduct set the baseline for actionable harassment. To the contrary, prior cases involving “appalling conduct … merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.” Harris, 510 U.S. at 22; see also id. at 19, 23 (remanding for further proceedings where allegations included sexual innuendos, jokes, and insults, but not physical threats); Jones v. UPS Ground Freight, 683 F.3d at 1303 n.49 (“Although the incidents of harassment in Green were greater in number than in the present case and were directed personally at the plaintiff, we are mindful that ‘appalling conduct alleged in prior cases’ does not ‘mark the boundary of what is actionable.’”) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000)); Wooten v. Fed. Express Corp., 325 F. App’x 297, 303 n.20 (5th Cir. 2009) (per curiam) (endorsing Second Circuit’s observation that “[p]rior cases … do not ‘establish a baseline’ that subsequent plaintiffs must reach in order to prevail”) (quoting Schiano v. Quality Payroll Sys., 445 F.3d 597, 606 (2d Cir. 2006)).

We acknowledge that, in dicta, this Court has stated that “Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected classmember’s opportunity to succeed in the workplace.” Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). In Weller, however, the plaintiff complained only that her supervisor gave her an excerpt from a book that she found offensive: “an isolated incident in an otherwise satisfactory work relationship.” Id. at 194 n.5. By any measure, the relatively mild conduct alleged in Weller, which only occurred once, was neither severe nor pervasive.

Because of this factual context, the Weller Court did not address the tension between its statement and the Harris Court’s pronouncement that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986)); see also Gardner, 915 F.3d at 325 (same, citing and quoting Harris). As the Supreme Court has explained, “even without regard to … tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality.” Harris, 510 U.S. at 22.

Conclusion

The district court wrongly required Wantou to show both severe and pervasive harassment, although the law requires him to show only one or the other. Nonetheless, the evidence in this case would allow a reasonable jury to find that he was subjected to both, and the district court erred in ruling otherwise.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ Gail S. Coleman

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The EEOC takes no position on any other issue in this case.

[2] As required on summary judgment, the EEOC relates these facts in the light most favorable to Wantou, drawing all reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Badgerow v. REJ Props., Inc., 974 F.3d 610, 616 (5th Cir. 2020).

[3] The parties dispute which, if any, of these complaints addressed his allegedly hostile work environment. Compare ROA.4120-21 (Mot. for S.J.) with ROA.6888-91 (Opp. to S.J.).

[4] It is unclear whether Samples, Edwards, and Willoughby were Wantou’s coworkers or his subordinates for Title VII purposes, because the record lacks any indication that he had the authority to discipline them. Either way, courts generally apply the same “knew or should have known” standard governing coworker harassment to subordinate harassment. See, e.g., Franchina v. City of Providence, 881 F.3d 32, 50 (1st Cir. 2018) (district court properly admitted evidence showing that management-level employees knew or should have known plaintiff’s subordinates were sexually harassing her but failed to take prompt and appropriate corrective action); Stewart v. Rise, Inc., 791 F.3d 849, 860 (8th Cir. 2015) (plaintiff who was harassed by subordinates must show that employer “knew or should have known of the harassment” and “failed to take proper action”).

[5] We note that, depending on context, a jury could find even a handful of references to the n-word and/or a noose to be “severe.” See Vess v. MTD Consumer Grp., Inc., 755 F. App’x 404, 408 (5th Cir. 2019) (n-word is “perhaps the most offensive and inflammatory racial slur in English … a word expressive of racial hatred and bigotry”) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001)); see also Lauderdale, 512 F.3d at 163 (the more severe the harassment, the fewer instances are required).