Statement of Interest

Congress directed the Equal Employment Opportunity Commission to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and other federal laws prohibiting employment discrimination. The Commission is particularly interested in seeing that Title VII is enforced in a way that minimizes the number of violations that occur in the workplace. This case addresses when Title VII should protect employees against retaliation for reporting workplace harassment to their employers. Employers cannot effectively fulfill their duty to prevent hostile work environments without such employee complaints. Accordingly, pursuant to Federal Rule of Appellate Procedure 29, the Commission offers its views.

Statement of the Issues

1. Should Title VII protect an employee from retaliation for informing her employer of racially offensive workplace conduct that, if repeated often enough, would create a hostile work environment?

2. If a court rules that the plaintiff has not offered sufficient evidence to establish a hostile-work-environment claim, is the plaintiff precluded as a matter of law from showing that she reasonably believed that the harassment she complained about was unlawful?

Statement of the Case

Reya Boyer-Liberto, an African-American woman, started working for the defendant, an ocean-front hotel, in early August 2010. Joint Appendix (“JA”)-336. One of the other employees at the hotel was Gertude Clubb, a Caucasian. Clubb was the weekend restaurant manager, JA-337, but Liberto did not know that. JA-217. Liberto knew that Clubb had more power than she did and that she was a friend of Leonard Berger, the hotel’s owner. JA-215, 218, 278.

On September 14, 2010, Liberto was working as a server. When one of her customers ordered a special drink, Liberto had to go to the pub bar to fill the order, and she walked through the restaurant kitchen on the way. JA-221–22, 224. Observing this, Clubb summoned her to admonish her, but Liberto did not hear Clubb calling her. JA-222, 234.

Clubb was now unhappy not only about Liberto’s walking through the kitchen, but also about her failure to stop and listen when Clubb summoned her. JA-232, 238. When Liberto returned to her servers’ station after delivering the drink, Clubb angrily approached her. JA-238. Clubb screamed at Liberto, “Hey, girl that can’t hear!” JA-240–42. She berated Liberto for not listening to her earlier. JA-248–49. She told Liberto she was going to “get” her and “make [her] sorry,” JA-256–57, and called her a damn (or dang) “porch monkey.” JA-258, 262. Clubb came so close to Liberto that Liberto felt Clubb’s spittle on her face. JA-245.

The next day Liberto went to see her supervisor, Richard Heubeck, in his office to complain about Clubb’s behavior the previous day. JA-264–67. Before Liberto had time to communicate her complaint, Clubb came in and took Liberto out of Huebeck’s office, telling her, “I need to speak to you, little girl.” JA-267–68. Outside Heubeck’s office, Clubb criticized Liberto for “abandoning [her] station” (by going to the pub bar). JA-268. Yelling angrily, Clubb threatened to tell Berger, to “get” Liberto, and to “teach [her] a lesson.” JA-269–70. She then called Liberto a “porch monkey” again. JA-270.

On September 17, Liberto reported Clubb’s conduct to Nancy Berghauer, the hotel’s director of human resources. JA-337. Heubeck, Liberto’s supervisor, investigated her complaint and issued Clubb a written warning “to be cautious in her language and in her treatment of employees.” JA-338. Meantime, Berghauer told Berger, the hotel’s owner, about Liberto’s complaint. JA-337. After discussing Liberto’s complaint and her performance with Heubeck and others, Berger decided to terminate Liberto, allegedly for poor performance. JA-42–43, 45, 338. The hotel terminated Liberto on September 21, four days after she complained to Berghauer. JA-338.

District Court Decision

The district court granted the defendant summary judgment on all of Liberto’s claims. Liberto alleged that she had suffered a racially hostile work environment, but the district court ruled that the evidence she offered did not reveal harassment that was severe or pervasive enough to change the terms or conditions of her employment. JA-339–41. Liberto also claimed that the hotel retaliated against her by terminating her because she had complained about Clubb’s harassment. The district court acknowledged that Liberto had complained to the hotel’s HR director about Clubb’s race-based harassment of her, but it ruled that Liberto’s complaint was not protected activity under Title VII because she could not have had an objectively reasonable belief that Clubb’s harassment of her was unlawful. JA-341–42 (quoting Jordan v. Alternative Resources Corp., 458 F.3d 332, 341 (4th Cir. 2006)).

Panel Decision

Liberto appealed, and on May 13, 2014, a panel of this Court unanimously affirmed the district court’s dismissal of Liberto’s hostile-work-environment claim, agreeing with the district court that Liberto had failed to offer sufficient evidence that Clubb’s harassment was severe or pervasive. Panel dec. at 12–17. The panel majority (Judges Niemeyer and Shedd) affirmed the dismissal of her retaliation claim as well, supporting its ruling by stating that the panel’s decision on Liberto’s hostile-work-environment claim precluded her from showing that she had an objectively reasonable belief that Clubb’s harassment was unlawful. Panel dec. 17–22. Chief Judge Traxler dissented, agreeing with Judge King’s dissent in Jordan that the rule adopted in that case leaves victims of harassment in a catch-22 between enduring the harassment without complaining and complaining without any protection against retaliation. Panel dec. at 30–31 (quoting Jordan, 458 F.3d at 349, 355–56 (King, J., dissenting)).

On July 1, 2014, this Court granted rehearing en banc, vacating the panel’s decision and opinions.

Argument

I. Title VII’s anti-retaliation provision should be construed to protect employees who complain about racially offensive conduct that, if repeated often enough, would result in an actionable hostile work environment.

Section 704(a) of Title VII provides in relevant part that

[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter.

42 U.S.C. § 2000e-3(a) (the “opposition clause”).

This Court in Jordan held that an employee who reported offensive workplace conduct to his employer is not protected against retaliation under the opposition clause unless he had, at the time, an objectively reasonable belief that the offensive conduct he was reporting was severe or pervasive enough to create an actionable hostile work environment or that a plan to create such an environment was being implemented. Jordan, 458 F.3d at 338–41. This significant restriction on Title VII’s protection against retaliation conflicts with the duty that employees have under Title VII to avoid or minimize their damages and obstructs the process that the Supreme Court has prescribed to enable employers to fulfill their duty to protect their employees from hostile work environments. The Commission therefore urges this Court to reconsider the rule adopted in Jordan and hold that employees engage in protected opposition for retaliation purposes if they complain about racially offensive conduct that would create a hostile work environment if repeated often enough.

A. Victims of harassment have a duty to report the harassment to their employers before it creates a hostile work environment.

Harassment victims, like tort victims, have a duty to avoid or minimize damages, and that means they have a duty to report racially offensive conduct before it becomes actionable. The Supreme Court made this duty clear in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Title VII, the Court noted, “borrows from tort law the avoidable consequences doctrine.” Ellerth, 524 U.S. at 764. A harassment victim therefore “has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize the damages’ that result from violations of the statute.” Faragher, 524 U.S. at 806. The only way a harassment victim can avoid damages resulting from a hostile work environment is to report the harassment to the employer before it becomes actionable. Indeed, she cannot recover damages that she could have avoided had she reported the harassment earlier. Id. at 806–07 (“If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so.”).

Faragher and Ellerth involved harassment by supervisors, but a victim of co-worker harassment has the same duty to alert the employer to the harassment so the employer can address it. Howard v. Winter, 446 F.3d 559, 567 (4th Cir. 2006) (“‘[T]he law against harassment is not self-enforcing and an employer cannot be expected to correct [co-worker] harassment unless the employee makes a concerted effort to inform the employer that a problem exists.’”). Since harassment victims have a duty to avoid damages by reporting the harassment before it becomes actionable, § 704(a) should be interpreted to protect such complaints. Cf. Crawford v. Metro. Gov’t of Nashville, 555 U.S. 271, 276 (2009) (when plaintiff, responding to a question by a representative of the employer, “described several instances of sexually harassing behavior” by a manager, Supreme Court held her comments protected by § 704(a) without requiring her to show she reasonably believed that the conduct she witnessed, assessed independently, was unlawful).

Moreover, employees have no duty to endure harassment silently until they can form an objectively reasonable belief that an actionable hostile environment is present or imminent, and neither of Title VII’s principal objectives—preventing discrimination and making victims whole—is served by requiring them to do so. By depriving such employees of protection from retaliation, the Jordan rule undermines these principles. As Judge King said in his dissent in Jordan, the Jordan rule leaves victims of harassment in a “catch-22” that violates Title VII, forced either to report the harassment with no protection against retaliation or to endure the harassment without asking the employer to correct it. Jordan, 458 F.3d at 355. The Supreme Court expressed the same concern in Crawford when it stated that § 704(a) should not be interpreted to leave employees in a catch-22 between not reporting harassment and reporting harassment with no protection against retaliation. 555 U.S. at 279.

B. To serve Title VII’s primary purpose of preventing unlawful discrimination, harassment victims must report racially offensive conduct before it becomes actionable.

The “‘primary objective’” of Title VII “is not to provide redress but to avoid harm.” Faragher, 524 U.S. at 805–06. Employers have a duty to prevent and avoid violations of Title VII by their supervisors. Id. at 806. Similarly, if employers do not address co-worker harassment they know about or should have known about, they can be held liable under a negligence theory. Howard, 446 F.3d at 567. But in either case employers often cannot prevent hostile work environments from taking place unless employees alert them to the harassing conduct that, if not corrected, will create the hostile work environment.

Employee complaints about racially offensive conduct that is not yet actionable are therefore essential to enable employers to avoid violations. “If Title VII’s prohibitions against sexual harassment are to be effective,” this Court has acknowledged, “employees must report improper behavior to company officials.” Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001); see also Howard, 446 F.3d at 567 (“‘[A]n employer cannot be expected to correct [co-worker] harassment unless the employee makes a concerted effort to inform the employer that a problem exists.’”). The Supreme Court accordingly stated in Ellerth that “Title VII’s deterrent purposes” would be best served if employees “report harassing conduct before it becomes severe or pervasive.” 524 U.S. at 764 (emphasis added). Indeed, putting aside Liberto’s termination, this complaint-and-correction process apparently worked here as it should: Liberto complained about Clubb’s racially offensive conduct; the employer investigated her complaint and gave Clubb a written warning; and as far as the record reveals, there were no subsequent complaints about racially offensive conduct by Clubb.

In addition, it often happens that the harasser harasses more than one employee, but no one victim knows about (or has admissible evidence showing) all the instances of harassment. An employer trying to forestall actionable hostile work environments would want to know that several employees independently find the harasser’s conduct racially offensive. For this reason also, employees should be encouraged to report racially offensive conduct that, if repeated, would be actionable, and they should be protected from retaliation if they do so. As the Supreme Court has stated, “Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the [employee] cooperation upon which accomplishment of the Act’s primary objective depends.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

Under the “if repeated” standard, the district court erred in granting the hotel summary judgment on Liberto’s retaliation claim. Loudly and angrily calling a black person a porch monkey is racially offensive conduct that if repeated often enough would result in a hostile work environment. See White v. BFI Waste Servs., LLC, 375 F.3d 288, 297 (4th Cir. 2004) (finding sufficient evidence of a hostile environment where plaintiff’s supervisors repeatedly called him and other black employees “porch monkey” as well as “nigger,” “jigaboo,” and other racial slurs); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (“To 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.”); Tawwaab v. Virginia Linen Serv., Inc., 729 F. Supp. 2d 757, 776 (D. Md. 2010) (“[C]omparing an African-American to a monkey is a degrading and outrageous form of race-based harassment.”).

Clubb was not Liberto’s direct supervisor, but she was more powerful at the hotel than Liberto was, and she was a friend of the hotel’s owner. In the same brief and angry interactions in which Clubb called Liberto a porch monkey, she also threatened to get Liberto in trouble with the owner and threatened to “get” her, to “teach [her] a lesson,” and to “make [her] sorry.” Clubb also addressed Liberto as “little girl.” An employer interested in preventing hostile work environments would want to know about this type of conduct so it could be addressed and corrected. The opposition clause should therefore be interpreted to protect complaints like Liberto’s.

The “if repeated” standard would not turn Title VII into a civility code. Employees would not be protected when complaining about conduct that is trivial or only mildly annoying, but only when complaining about conduct that if repeated often enough would result in a hostile work environment. Moreover, they would be protected when complaining about offensive conduct only if the conduct was offensive because of its close linkage to one of the factors listed in the statute as a prohibited basis for discrimination, such as race or sex. If the harassment was based on some other factor, like a personality conflict, the employee’s complaint would not be protected.

II. A ruling that Liberto did not offer sufficient evidence to show that Clubb’s harassment was severe or pervasive should not preclude her as a matter of law from showing that she reasonably believed the harassment was unlawful.

The district court did not rule that Liberto’s failure to offer sufficient evidence that Clubb’s harassment was severe or pervasive precluded her from showing that she reasonably believed that the harassment was unlawful, and neither of the parties had argued that Liberto’s two claims were interdependent in this fashion. The Commission addresses this issue because one of the reasons the panel majority gave for dismissing Liberto’s retaliation claims was that the panel’s decision on her hostile-work-environment claim precluded her from establishing her retaliation claim:

In the circumstances of this case, if no objectively reasonable juror could have found the presence of a hostile work environment, as we today hold, it stands to reason that Liberto also could not have had an objectively reasonable belief that a hostile work environment existed.

Panel dec. at 20. The panel majority erred in ruling that a decision finding insufficient admissible evidence of harassment to support a plaintiff’s hostile-work-environment claim compels, as a matter of law, a decision that the plaintiff, for purposes of her retaliation claim, could not have reasonably believed that an actionable hostile work environment was present or imminent.

The problem with the panel majority’s reasoning is that it defeats the purpose of the reasonable-belief rule. Section 704(a) prohibits discrimination against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). This Court, like all the other courts of appeals, construes § 704(a) to protect employees who engaged in opposition activity even if the conduct they opposed was not actually unlawful—as long as they reasonably believed it was unlawful. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (plaintiff’s opposition to what she reasonably believed was a discriminatory plan to terminate another employee was protected activity); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 187 n.1 (2005) (Thomas, J., dissenting) (citing cases from most of the other courts of appeals). Under the panel majority’s improperly narrow construction in this harassment case, an employee who opposes a practice or conduct is protected against retaliation only if she can prove that the practice or conduct actually is unlawful.

The panel majority’s rule puts too heavy a burden on harassment victims because even courts sometimes have a difficult time drawing the line between unlawful and merely unpleasant conduct in harassment cases. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) (“not . . . a mathematically precise test”); id. at 24 (“not . . . a very clear standard”) (Scalia, J., concurring); Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (the line “may be difficult to discern”). The rule also ignores the difference between the decision jurors in a hostile-work-environment case must make and the reasonable belief required of retaliation plaintiffs. Jurors must consider only admissible evidence and decide whether the plaintiff has established a violation of the statute by a preponderance of the evidence. An employee who engages in opposition activity must reasonably believe that the conduct he is opposing is unlawful, but he is not rendering a verdict in a court of law, and he is not restricted, in forming that belief, to evidence that is admissible at trial.

For example, the district court pointed out that the evidence indicated that when Liberto complained to Berghauer about Clubb’s harassment, she said that Clubb called her “porch monkey” only once, while in her deposition Liberto testified that Clubb called her “porch monkey” two different times. JA-337, n.2. In addressing Liberto’s hostile-work-environment claim, the district court said that the hotel’s response to her complaint should be assessed in light of what Liberto told Berghauer (that the epithet was used only once). JA-337, n.2.[1] But when addressing Liberto’s retaliation claim, the reasonableness of her belief should be assessed in light of what Liberto knew and believed, not in light of what the hotel knew and believed.

The point of the reasonable-belief rule is to ensure that an employee who engages in opposition activity is protected against retaliation not only when the practice or conduct he opposed was unlawful, but also when he reasonably—albeit incorrectly—believed it was unlawful. Navy Fed. Credit Union, 424 F.3d at 406; Little v. United Techs., 103 F.3d 956, 960 (11th Cir. 1997) (reasonable-belief rule is broader than rule requiring an actual violation would be). But the panel majority’s rule eliminates that understanding of § 704(a). The panel majority said that if the plaintiff has not offered sufficient admissible evidence to show that the harassment constituted an actionable hostile work environment, any belief the plaintiff had that the harassment was unlawful cannot have been reasonable: that is, if the jury cannot find the harassment was unlawful, the plaintiff could not have reasonably believed it was. If the reasonable-belief rule is to serve its purpose, there must be cases where even though the evidence is not sufficient to establish that the conduct the plaintiff opposed was in fact unlawful, the plaintiff’s belief that the conduct was unlawful was reasonable.

Conclusion

Accordingly, the Commission respectfully urges this Court to hold that § 704(a) protects an employee who complains about racially

offensive conduct that, if repeated often enough, would result in an actionable hostile work environment.

[1] The Commission does not necessarily endorse this approach, particularly if what the harassment victim reported should have led the employer to conduct a reasonable investigation, and a reasonable investigation would have uncovered the additional information.