STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (EEOC or Commission) is charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Title VII bars employers from discriminating against any employee “because of ... sex.” Id. § 2000e-2(a). Discrimination “because of sex” includes same-sex harassment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998). This appeal raises the question of what evidence a plaintiff must provide at trial to establish that same-sex harassment occurred because of sex. Because the EEOC has a strong interest in the proper interpretation of the federal anti-discrimination employment laws, it offers its views to this Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Did the district court correctly determine that the jury rationally could have found that Plaintiff-Appellee Robert Smith was subjected to harassment based on sex, where the harassment included repeated groping of his penis, testicles, and buttocks and simulated anal sex and where female employees were not similarly harassed?

STATEMENT OF THE CASE

I. Statement of Facts

Plaintiff Robert Smith, who is African American, began working in the meat department of Rosebud Farmstand, a grocery store operated by defendant Rosebud, Inc., around November or December 2003. R.438 at 488-90, 501-02, 511-12. Individual defendants Carlos Castaneda and Roque Mendoza were, respectively, general manager and an assistant manager of the store. R.442 at 973, 977. About twenty-two employees worked at the store. Id. at 984-86. According to Castaneda, women typically worked as cashiers and sometimes as baggers, and the store usually employed about six cashiers and one or two baggers. Id. Castaneda and meat department employee Corey Barr recalled that about four to seven female employees worked at the store. Id.; R.436 at 235-37, 282. Although no women worked in the meat department, Barr recalled that female employees entered the meat department “[b]asically[] every day” to return unwanted meat cuts and other items. R.436 at 281-82; R.442 at 986. Rosebud’s owner, Jerry Brucer, described the store as a “small” establishment with an area of roughly “3,000 square [feet].” R.438 at 488-90

Between 2003 and 2007, Smith was subjected to persistent harassment based on sex by Castaneda, Mendoza, and other Rosebud employees. Smith testified that Castaneda, the store’s general manager, began harassing him around December 2003, “within two and a half weeks” after Smith began working at Rosebud. Id. at 511-12. While Smith was “filling in the chicken wings … [at] the meat counter,” Castaneda walked past Smith and groped his genitals and buttocks. Id. at 512. Smith recalled, “[Castaneda] grabbed my ass and reached toward the front—from the front to my ass and, like, had my nuts and my dick, you know, in his hand.” Id. Smith “felt violated” and “upset” because “[he] had never had a job[] where … [he] had experienced that.” Id. “[W]ithin ... the following month,” Castaneda targeted Smith again, grabbing Smith’s buttocks as he passed Smith in the meat department. Id. at 513-14.

After those first two incidents, Smith recalled that Castaneda touched him “frequent[ly]” or “a couple more times.” Id. at 514. For example, Smith testified that, around February or March 2004, Castaneda “put his hand on my ass again” when Smith went back to the storage area to fetch a case. Id. at 514-15. Smith told Castaneda not to touch his buttocks. Id. As another example, in 2005 or 2006, Castaneda grabbed Smith’s buttocks when Smith was “outside of the meat counter.” Id. at 515. Smith also recalled that in 2005 or 2006, Castaneda “started talking about blacks, you know, have big dicks and big asses.” Id.

In 2005, Smith missed two days of work because he was in jail due to a criminal charge. Id. at 516-17. He returned to Rosebud after missing his shifts and explained the situation to Castaneda, who agreed to allow Smith to continue working at Rosebud. Id. at 518. Smith recalled that Castaneda said, “Well, you know, you know I own your ass from this point now, don’t you know that?” Id. After Castaneda’s comment, Smith recalled, “[I] felt like I had to pretty much, ... you know, I had to deal with what I had to deal with when I was employed there.” Id. at 518-19.

Smith also described harassment by Mendoza, who worked as a stocker before becoming assistant manager around 2006. R.442 at 977; R.443 at 1107-08. Smith recalled that Mendoza “tried to pretty much invite me to go to hotels” and he described multiple groping incidents. R.438 at 519-29, 539-45, 551-53. The first time Mendoza groped Smith, in 2003, Smith was “attending to a customer” when, he recalled, “unexpectedly, I [felt] someone grab my ass.” Id. at 520-21. Smith turned around and saw Mendoza behind him. Id. at 520. Smith felt “humiliated” and “furious” and told Mendoza not to touch him again. Id. at 520.

Despite Smith’s admonition, Mendoza touched or grabbed Smith “numerous” times in 2004 and throughout the next few years. Id. at 521. Smith testified that, while he was working, Mendoza “would grab” his “ass” and his “nuts” and “would grab,” “pull[] on,” and “flip[] on” his “dick.” Id. Mendoza groped Smith in “different areas” of the store,” “behind the meat counter, in front of the meat counter,” and when Smith walked through the produce section—where Mendoza worked at the time—to use the restroom. Id.

For example, around March 2004, Smith was helping a customer when Mendoza “[came] up behind [Smith]” “without [Smith] seeing him.” Id. at 526-27. Smith described Mendoza “grabbing my dick and my ass.” Id. at 527. Also in 2004, when Smith was stocking seasoning in the stock room, Smith recalled that Mendoza “grabbed my ass,” “lifting up on my ass.” Id. at 528-29. Smith recounted an incident in the fall of 2004 where Mendoza, in Smith’s words, “grabbed my dick” and “had one of my testicles, also, when he grabbed it.” Id. at 540. In 2005, Mendoza grabbed Smith’s penis and buttocks in the meat department. Id. at 544. Smith stated that Mendoza’s assault on that occasion felt “as if [Mendoza] shoved his hand in my—like almost where my prostate is.” Id. Mendoza admitted at trial that he slapped Smith’s buttocks. R.443 at 1114-15.

Smith’s coworkers also subjected him to sexually charged harassment. Smith testified that, on numerous occasions between 2003 and 2007, several male employees touched and grabbed his penis, testicles, buttocks and simulated anal sex with him. R.438 at 555-70, 577-83; R.439 at 606-609, 612-24, 633-35, 639-41. Barr and Rosebud employee Cari Alexander confirmed Smith’s account, testifying that they saw male employees touch Smith’s penis, testicles, and buttocks. R.436 at 244-45; R.437 at 367, 406-10.

Smith recounted two separate occasions when Frederico Lopez, whom Smith described as the head butcher, “took his fingers and went up the crack ... of my ass” and “shoved his hand in my ass” and an incident when an employee named Marcos “poked me in the ass” and Smith “felt like fingertips [were] entering the crack of my ass.” R.438 at 508, 557-59, 570; R.439 at 612-14. Additionally, Smith described male employees’ practice of simulating anal sex with him as they stood behind him: “They would hump their penis on my ass.” R.439 at 639-41. Smith recalled that other male employees humped him from behind “several times” in 2004 and that he was also subjected to humping in 2005 and 2007. Id. at 633-35, 639-41.

Smith further testified that he observed male employees touching other male employees in a sexual manner, including groping other male employees’ genitals and simulating anal and oral sex. According to Smith, this conduct occurred frequently (“each and every day, like, every week”) in 2005 and continued in 2006 and 2007. Id. at 651-53. Barr and Alexander corroborated Smith’s testimony. R.436 at 245-47; R.437 at 365-66. Lopez, the head butcher, acknowledged that he saw Rosebud employees touching coworkers’ buttocks. R.444 at 1312. However, Smith and Barr testified that they never saw Rosebud’s male employees touch female employees in a sexual manner. R.436 at 282; R.439 at 657-58.

At trial, Smith described multiple incidents of sexual touching among male employees at the store. For example, on several occasions, Smith saw Lopez, employee Jose Martinez, and an employee named Victor put their hands down the front of other male employees’ pants. R.439 at 646-47. Smith witnessed Mendoza “grab [Lopez] [in] the front of [his] pants where his dick is.” Id. at 647-48.

Also, Smith testified that he saw male employees, including Oscar Munoz, who was an assistant manager, grope Martinez’s genitals and simulate anal sex with Martinez. Id. at 649-51; R.442 at 975. According to Smith, Munoz “would be caressing [Martinez’s] dick area [from behind]. … And they would be moving like they were making love.” R.439 at 649. Smith saw an employee named Victor “humping [Martinez] in the same way” while grabbing Martinez’s genital region. Id. at 650. Smith also saw Martinez simulating oral sex on male employees. R.440 at 732-39. On one occasion, Martinez “[got] down on his knees and he put[] his mouth right on the front of ... Lopez’s penis area, and just like he was giving him—you know, sucking his dick[.]” Id. at 732. Smith further witnessed Martinez simulating oral sex with assistant manager Munoz and employee Orlando Alarcon. Id. at 734-39; R.442 at 1006.

In addition to the sexual harassment Smith experienced, Rosebud employees, including assistant managers Mendoza and Munoz, frequently subjected him to racist epithets: they called him “nigger” and “monkey” and told him to “[g]o back to Africa.” R.439 at 675-86. Smith testified that Rosebud employees made racist comments to him about twenty times in 2004, thirty times in 2005, and more than seventy times in 2006. Id. at 684.

Smith reported the harassment to management on multiple occasions, but the conduct persisted despite his complaints. Id. at 687-95. Then, around January 2008, Smith filed a charge of discrimination with the EEOC. R.441 at 813-14. After Smith filed the charge he began to experience retaliation. R.440 at 759-82. Castaneda and other Rosebud employees told Smith he was not welcome at the store. Id. at 759-61. Smith’s coworkers in the meat department started “slamming knives on the cutting boards” in Smith’s vicinity and walked past him with trays that had knives sticking out. Id. at 761-64, 776-80. Smith brought a “practically new” portable television to work and found it broken after he returned from lunch one day. Id. at 764-68. Smith’s car—parked in a gated lot accessible only to Rosebud employees—was damaged several times: the car was scratched, the windshield was cracked, and the tire was slashed. Id. at 768-75.

Around June 2008 Smith resigned his position at Rosebud. Id. at 781-82. After investigating Smith’s charge, the EEOC found reasonable cause to believe that a Title VII violation occurred and issued a notice of right to sue. R.1-1 (EEOC Notice of Right to Sue).

II. Course of Proceedings

Smith filed suit against Rosebud and individual defendants Castaneda and Mendoza. After hearing five days of testimony, the jury returned a verdict for Smith on all counts. R.248 (Jury Verdict). The jury found Rosebud liable for sexual harassment and retaliation under Title VII and racial harassment and retaliation under 42 U.S.C. § 1981 and found that Castaneda and Mendoza violated the Illinois Gender Violence Act, 740 Ill. Comp. Stat. 82/1 et seq. R.248. The district court denied Rosebud’s Rule 50 motions for judgment as a matter of law and declined to set aside the jury’s verdict on liability. R.311 at 1 (Order Den. Mots. for J. as a Matter of Law). In particular, the district court rejected Rosebud’s argument that the trial record was insufficient to support the jury’s determination of a hostile work environment, including that it was based on sex.

The district court identified two reasons why the jury could have rationally concluded that the harassment was based on Smith’s sex. First, the district court explained that “the touching itself was sexual in nature, as it involved the unwanted touching of [Smith’s] intimate body parts.” Id. at 6. Second, the district court underscored that “female employees were not subject to th[e] sort of touching” Smith endured. Id. The district court cited Oncale for the propositions that (1) Title VII covers circumstances where “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed” and (2) “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Id. at 6-7 (quoting Oncale, 523 U.S. at 80). The district court also relied on the concurrence in Gabrielle M. v. Park Forest-Chicago Heights, Illinois School District 163, 315 F.3d 817, 827 (7th Cir. 2003) (Rovner, J., concurring), for the proposition that “touching [of] genitals” may support an inference that conduct was “based on sex.” R.311 at 7-8.

The district court further held that the jury could have rationally found that Smith established the remaining elements of a hostile work environment at trial: that Smith was subjected to unwelcome, objectively offensive, and subjectively hostile harassment for which Rosebud was vicariously liable. Id. at 6-10. The district court additionally denied Rosebud’s motion for a new trial. R.337 (Order Den. Mot. for New Trial). Rosebud’s appeal followed.

ARGUMENT

The district court correctly determined that the jury rationally could have concluded that Smith was subjected to harassment based on sex.

This Court should affirm the district court’s denial of Rosebud’s Rule 50 motions for judgment as a matter of law. Reversal of the jury’s verdict is warranted “only if no rational jury could have found for the prevailing party.” EEOC v. AutoZone, Inc., 707 F.3d 824, 835 (7th Cir. 2013). The district court correctly determined that the jury could have rationally concluded that Smith suffered harassment based on sex for two reasons: (1) the sexual and gender-specific nature of the harassment suggests that the harassers would not have harassed Smith in the same way if he had not been male and (2) Smith was treated worse than female employees.

As this Court has explained, in cases of same-sex harassment, “[s]o long as [a male harassment victim] demonstrates in some manner that he would not have been treated in the same way had he been a woman, he has proven sex discrimination.” Shepherd v. Slater Steel Corp., 168 F.3d 998, 1009 (7th Cir. 1999). As an illustration, Oncale noted that a plaintiff may establish that harassment occurred because of sex by providing evidence that (1) the harasser is homosexual, (2) the harassment was “motivated by general hostility to the presence of [individuals of the plaintiff’s sex] in the workplace,” or (3) the alleged harasser treated members of both sexes differently in a mixed-sex workplace. 523 U.S. at 80-81. But this Court has made clear that plaintiffs are not limited to Oncale’s three suggested paths to establish same-sex harassment, so long as the plaintiff “prove[s] sex discrimination.” Shepherd, 168 F.3d at 1009.

A. The jury reasonably could have found that Smith was subjected to harassment “based on sex” given the sexual and gender-specific nature of the harassment.

As the district court emphasized, the trial record established that Smith’s harassers subjected him to unwanted “touching [that was] was sexual in nature, as it involved the unwanted touching of [Smith’s] intimate body parts.” R.311 at 7. Therefore, the district court correctly determined that the jury had ample evidence to conclude that Smith was harassed based on sex. See id. In particular, the jury could have found that the harassment was based on sex because it targeted sex-specific body parts and because it would not have occurred but for Smith’s sex. Finally, Rosebud’s arguments that the conduct was merely “crude horseplay” and that Smith must “provide evidence to demonstrate that his coworkers were homosexual,” see Rosebud Br. 14, do not justify overturning the jury’s verdict.

First, the jury could have found that the harassment occurred because of sex because it targeted sex-specific body parts, as the district court underscored. R.311 at 7. This Court and other courts of appeals have recognized that harassment may occur “because of sex” where a harasser physically assaults a victim in sex-specific ways, especially through striking or fondling genitals.

For example, Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated and remanded for further consideration in light of Oncale, 523 U.S. 1001 (1998), opined that “when one’s genitals are grabbed ... it would seem to us impossible to de-link the harassment from the gender of the individual harassed.” City of Belleville further explained, “Frankly, we find it hard to think of a situation in which someone intentionally grabs another’s testicles for reasons entirely unrelated to that person’s gender.” Id. Although Oncale nominally abrogated City of Belleville, the decision is instructive insofar as it is consistent with Oncale. Oncale’s comment regarding verbal harassment with sexual content—that the Supreme Court “[has] never held that workplace harassment ... is automatically discrimination because of sex merely because the words used have sexual content or connotations,” 523 U.S. at 80—does not forestall the conclusion that physical harassment targeting sex-specific body parts is based on sex. See Johnson v. Hondo, Inc., 125 F.3d 408, 412-13 (7th Cir. 1997) (distinguishing alleged harassment consisting of “remarks” with “sexual content” from the harassment in City of Belleville because, among other reasons, the latter involved physical “attacks” and other conduct that “truly [was] gender-based”).[2]

Similarly, the concurrence in Gabrielle M., a Title IX case on which the district court relied, R.311 at 8, stated that, where a male student touched a female student’s genitals, among other conduct, that “readily support[ed] the inference that [the alleged conduct was] based on sex.” 315 F.3d at 827 (Rovner, J., concurring); see also Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1023 (7th Cir. 1997) (explaining that “it is helpful to look to Title VII” in assessing Title IX sexual harassment claims). Rosebud points out that Gabrielle M. “did not involve same-sex touching,” Rosebud Br. 19, but that does not detract from the idea that genital contact may occur “because of sex” because genitals are sex-specific body parts. Rosebud also criticizes the district court for relying on a non-binding concurrence, but the concurrence has persuasive power. And the majority does not contradict the concurrence given that it did not reach the “because of sex” question. See Gabrielle M., 315 F.3d at 821-22, 24-25 (majority opinion) (“assum[ing] arguendo that [the] conduct was ‘sexual harassment,’” but concluding that the conduct was not severe or pervasive because the allegations were “vague and unspecific” and that the school district’s response was not “clearly unreasonabl[e]”).

Rosebud further argues that the Gabrielle M. concurrence is invalid because “the proposition cited, that unwanted touching of genitals is sufficient to demonstrate conduct ‘based on sex’ is directly contradicted by the binding precedent” of Lord v. High Voltage Software, Inc., 839 F.3d 556 (7th Cir. 2016). Rosebud Br. 19. However, Lord does not preclude the idea that evidence of genital contact may establish that conduct is “based on sex.” Rosebud emphasizes that Lord, which affirmed summary judgment on a male employee’s same-sex harassment claim, involved “grabbing between the legs.” Rosebud Br. 19. But the Lord plaintiff’s account of “grabbing” lacked specific allegations of genital contact, see 839 F.3d at 560, in contrast to, for example, Smith’s testimony that Castaneda held Smith’s penis and testicles in his hands or that Mendoza “grab[bed],” “pulled” and “flipped on” his penis. Moreover, in contrast to the single incident of “grabbing” in Lord, the jury in this case could have inferred that Smith’s harassers touched his genitals “because of sex” given that the conduct was repeated and persisted over several years. See infra p. 19. Therefore, nothing in Lord provides categorically that, as Rosebud suggests, “unwanted touching of genitals is [in]sufficient to demonstrate conduct ‘based on sex.’”

Other courts have also emphasized that harassment that targets sex-specific body parts may occur “because of sex.” In Barrows v. Seneca Foods Corp., 512 F. App’x 115 (2d Cir. 2013), the Second Circuit reversed summary judgment for the employer on the plaintiff’s same-sex harassment claim. Barrows held that a jury could conclude that “men were the primary targets of [the alleged harasser’s] conduct,” which included “vulgar comments” directed at the plaintiff and other male employees, “grabb[ing] [the plaintiff’s] testicles on one occasion[,] ... [and] hit[ting] [the plaintiff] and other male employees in the crotch on other occasions.” Id. at 116, 118. The court further emphasized that “[a] reasonable jury could also consider the fact that ... [the same-sex harasser] frequently touched male-specific (and sex-related) body parts.” Id. at 118. That is, evidence that a harasser grabbed a victim’s testicles and hit his crotch “could contribute to a reasonable jury’s ultimate conclusion that the alleged harassment was motivated by the victim’s sex.” Id. The Second Circuit observed that it previously had “implied ... that, at least under some circumstances, courts should presume that the touching of sex-specific body parts (such as a woman’s breasts) was motivated by the victim’s gender.” Id. at 118 n.6 (citing Redd v. N.Y. Div. of Parole, 678 F.3d 166, 179 (2d Cir. 2012) (reversing summary judgment on same-sex harassment claim)).

Similarly, in Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc), a plurality of the en banc Ninth Circuit emphasized that Title VII prohibits “offensive physical conduct of a sexual nature” regardless of the genders of the perpetrator and victim. Id. at 1064, 1068 (plurality opinion). Rene involved “a man who was repeatedly grabbed in the crotch and poked in the anus [by other men], and who was singled out from his other male co-workers for this treatment.” Id. at 1067. One member of the plurality wrote a separate concurrence to emphasize that “[t]he repeated physical attacks targeted at body parts clearly linked to [the victim’s] gender constituted overwhelming evidence from which a jury could infer that the attacks were based, at least in part, on [the victim’s] sex.” Id. at 1070 (Fisher, J., concurring). Also, Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996), decided before Oncale, emphasized that the plaintiff experienced physical touching “aimed at [his] sexual organs [and that] his testicles were squeezed so hard on one occasion that he almost passed out from the pain” in holding that a jury could conclude the touching occurred based on the plaintiff’s sex. Id. at 1379. See also Barrows, 512 F. App’x at 118 (citing Quick with approval after Oncale).

Therefore, in this case, the jury could have concluded that, when Smith’s harassers groped his penis and testicles, that conduct was based on sex. Rosebud acknowledges that the harassment included “touching [Smith’s] genitals,” Rosebud Br. 7, and Smith’s genitalia are “clearly linked to [his male] gender,” Rene, 305 F.3d at 1070 (Fisher, J., concurring). As in City of Belleville, “it [is] hard to think of a situation in which someone intentionally grabs [a fellow employee’s] [penis or] testicles for reasons entirely unrelated to that person’s gender.” 119 F.3d at 580. Rosebud observes that this conduct occurred “over [Smith’s] clothes,” Rosebud Br. 7, but unwanted genital touching in the workplace—whether underneath or on top of a person’s clothes—remains “offensive physical conduct of a sexual nature,” Rene, 305 F.3d at 1064 (plurality opinion), that is “impossible to de-link ... from the [victim’s] gender.” City of Belleville, 119 F.3d at 580.

Second, the jury could have determined that Smith would not have been victimized but for his sex, given the “sexual ... nature” of the harassment Smith suffered, i.e., the “unwanted touching of [Smith’s] intimate body parts” and other graphic sex-specific conduct. See R.311 at 7. For example, the jury could have concluded that a male harasser would be far less likely to simulate anal intercourse by “humping” a female coworker. Similarly, the jury could have reasoned that a male harasser probably would not comment to a female coworker that African-American men have “big dicks and big asses”—and even if he did, his comment would not have the same significance as this remark directed at an African-American male. Moreover, a male harasser literally could not grope a female victim’s penis or testicles. That is, but for Smith’s sex, he would not have been the target of the particular harassment that occurred.

This Court applied a similar comparative approach in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc), which held that Title VII prohibits sexual orientation discrimination. Hively emphasized that courts may assess whether “the complainant’s protected characteristic played a role” in an unlawful employment action by considering a counterfactual situation. Id. at 345; see also id. at 366 (Sykes, J., dissenting) (explaining that “[t]he comparative method of proof is a useful technique for ... ferreting out a prohibited discriminatory motive”). This Court explained, “[t]he counterfactual we must use is a situation in which [the plaintiff] is a man, but everything else stays the same: in particular, the sex or gender of the partner. [The plaintiff] alleges that if she had been a man married to a woman . . . and everything else had stayed the same, [the employer] would not have refused to promote her and would not have fired her.” Id. at 345 (majority opinion).

The same reasoning applies in this case: to assess whether Smith’s “protected characteristic”—his sex—played a role in the harassment, the appropriate “counterfactual ... is a situation in which [Smith] is a [woman].” Id. Again, the jury could have determined that the harassment—simulated anal sex, comments about the genitalia of African-American men, grabbing of Smith’s penis and testicles—would not have occurred if Smith were a woman. In fact, applying the approach outlined in Hively, the jury could have found that, had Smith been a woman rather than a man, Smith’s harassers could not have groped Smith’s penis and testicles. That is enough to establish Smith was subjected to harassment because of his sex.

Rosebud attempts to undermine the idea that the sexually charged conduct directed at Smith occurred because of sex by arguing that “sexual horseplay is not sufficient to support a Title VII claim.” Rosebud Br. 17. For that proposition, Rosebud relies on Lord and Shafer v. Kal Kan Foods, Inc., 417 F.3d 663 (7th Cir. 2005), but Lord and Shafer are distinguishable from this case.

In Lord, the plaintiff alleged (1) four incidents of unwanted physical contact by a male coworker, including two incidents where the coworker slapped the plaintiff’s buttocks, an incident where the coworker poked the plaintiff’s buttocks when the employee was bending over, and an incident where the coworker grabbed the plaintiff between the legs and (2) coworkers’ jokes using the phrase “audio bug,” which the plaintiff believed referred to “his supposed interest in a female [coworker, an] audio engineer.” 839 F.3d at 559-60. Among other reasons, Lord concluded that the conduct “was not so explicit or patently indicative of sexual arousal that a trier of fact could reasonably draw [the] conclusion” that his harasser “was homosexual.” Id. at 562.

Although, as explained infra p. 20-22, Smith was not required to prove his harassers’ sexual orientation, the harassment in this case is distinguishable from the conduct in Lord because it was sufficiently “explicit” to conclude that it occurred because of sex. For example, Castaneda held Smith’s genitals in his hand when he groped Smith. Mendoza “grabbed” Smith’s testicles and “flipped” and “pulled” his penis. Smith’s coworkers simulated anal sex with him, “humping” his buttocks with their penises. And Smith witnessed male coworkers simulating oral and anal sex with each other. For the same reasons, especially given the prevalence of simulated sex in Smith’s workplace, the jury could have found the conduct “patently indicative of sexual arousal,” regardless of Smith’s coworkers’ sexual orientations.

In Shafer, which also affirmed summary judgment on a male employee’s same-sex harassment claims, a coworker assaulted the plaintiff four times: he forced the plaintiff’s face to his crotch and simulated oral sex; he grabbed the plaintiff’s hand with significant force, moved the hand to his crotch, and simulated masturbation; he pulled a handful of hair from the plaintiff’s chest in a locker room; and he bit the plaintiff in the neck hard enough to raise welts. 417 F.3d at 665. The coworker also told the plaintiff his “cheerleader ass ... would look real nice on my dick.” Id. In affirming summary judgment for the employer, Shafer first emphasized a lack of vicarious liability, pointing out that the plaintiff did not immediately report the assaults and that the coworker’s conduct ceased after the plaintiff complained to management. Id. at 665-66.

To be sure, as Rosebud points out, Rosebud Br. 18, Shafer also observed that “[s]exual horseplay differs from sex discrimination” and “even sexually explicit roughhousing among men must be distinguished from sex discrimination.” 417 F.3d at 666. Although Shafer did not define “roughhousing” or “horseplay,” the court’s discussion of pervasiveness and frequency helps illuminate those terms. Shafer noted that the coworker’s conduct—“four batteries” (including two incidents with sexually explicit overtones) and one sexually explicit comment—“[did] not establish that working conditions ... were worse for men than for women,” in sharp contrast to the frequent harassment in, for example, Shepherd v. Slater Steels Corp., or in this case. 417 F.3d at 666. Similarly, while the plaintiff in Lord experienced five assaults and regular joking, Smith was subjected to pervasive, sexually explicit harassment between 2003 and 2007. That is, the jury could have rejected the idea that Smith experienced mere “horseplay” or “roughhousing” because the harassment persisted for years and occurred on a frequent basis.

Oncale also sheds light on the meaning of “roughhousing” and “horseplay.” The Supreme Court explained that “male-on-male horseplay” and “ordinary socializing in the workplace” should not be “mistake[n] ... for discriminatory conditions of employment.” 523 U.S. at 81 (quotation marks omitted). For example, Oncale suggests that a “[male football] coach [who] smacks [a male player] on the buttocks as he heads onto the field” engages in “roughhousing” rather than actionable harassment based on sex. Id. The conduct here is in stark contrast: Smith’s harassers handled his genitals and simulated anal sex with him, assaults that cannot be characterized as “ordinary socializing.” And although Smith’s harassers also touched his buttocks, repeated, unwelcome groping is distinguishable from a coach’s “smack,” especially when it occurs in the context of more serious and explicit physical contact. See Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 308 (6th Cir. 2016) (affirming jury verdict for the plaintiff and commenting that “the jury apparently found that pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay”); see also Quick, 90 F.3d at 1378-79 (rejecting district court’s conclusion that harassment that included physical touching “aimed at [the plaintiff’s] sexual organs” stemmed from “personal enmity or hooliganism” and was therefore “not of a genuine sexual nature”).

Finally, Smith was not required to establish that his harassers targeted him out of sexual interest or arousal.[3] Rosebud asserts that Smith could not establish that he experienced harassment based on sex because Smith “did not provide any evidence to demonstrate that his coworkers were homosexual.” Rosebud Br. 14; see also id. at 20 (same). In support of that assertion, Rosebud states that “[e]ach [of Smith’s] coworker[s] that testified stated that he was married, in a relationship with a woman, or was heterosexual.” Rosebud Br. 14; see also id. at 20 (same). But this Court has emphasized that a plaintiff need not establish the harasser’s sexual orientation in a same-sex harassment case: “[W]e do not ask a slew of subjective and invasive questions about the sexual orientation of the perpetrator or of the victim. We ask whether the treatment meted out created a hostile work environment because the victim was singled out because of his or her gender.” Johnson, 125 F.3d at 415; see also City of Belleville, 119 F.3d at 580 (“We doubt that it would have mattered for [the harassment victim] to know, when his testicles were in [the harasser’s] grasp, that [the harasser] was heterosexual or ... that he lived with a woman ... and thus that he may not have been sexually interested in [the victim].”).

Rosebud’s argument likely stems from its assumption that Smith sought to prove the harassment occurred “because of sex” via the first approach identified in Oncale, which recognizes that “it is reasonable to assume” that harassment is based on sex “if there [is] credible evidence that the harasser was homosexual.” 523 U.S. at 80-81. But that is only one example of how a plaintiff may establish that harassment is based on sex, and this Court has emphasized that it “discern[s] nothing in … [Oncale] indicating that the examples it provided were meant to be exhaustive rather than instructive.” Shepherd, 168 F.3d at 1009. That is, Oncale’s “focus was on what the plaintiff must ultimately prove rather than the methods of doing so.” Id.

B. The jury reasonably could have found that Smith was subjected to harassment “based on sex” because Smith’s harassers targeted male employees and not female employees.

As the district court correctly concluded, the jury also could have found that Smith experienced harassment based on sex because only male employees, not female employees, were targets of the sexually charged behavior Smith described. R.311 at 7. As Rosebud acknowledges, Rosebud Br. 19, “[a same-sex] harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Oncale, 523 U.S. at 80-81.

It is undisputed that the store was a mixed-sex workplace. Castaneda acknowledged that the store’s twenty-two-person workforce included as many as seven female employees. Although, as Rosebud emphasizes, no women worked in the meat department, the jury could have reasonably inferred that male and female employees “encountered one another regularly” in the 3,000-square-foot store. Smith, 813 F.3d at 308 (distinguishing Johnson, 125 F.3d at 413 n.6, which “concerned an area of the defendant’s workplace in which no women worked and through which women passed only occasionally”). And indeed, the jury heard testimony that female employees often visited the meat department to return merchandise or other items. The store’s environment and employee composition were in stark contrast to the isolated, all-male workplace in Oncale, where the Supreme Court nevertheless concluded that an alleged hostile work environment could have been based on sex. 523 U.S. at 77 (plaintiff worked on an “oil platform in the Gulf of Mexico ... [as part of] an eight-man crew”); see also Holman v. Ind., 211 F.3d 399, 407 (7th Cir. 2000) (Evans, J., concurring) (“The workplace in Oncale had eight employees, all male. Nevertheless, the court concluded that it would be possible to find harassment ... in a single-sex workplace.”).

There was ample evidence at trial that men, but not women, were the targets of sexually charged conduct in this mixed-sex workplace. Smith testified that he experienced repeated assaults of a sexual nature and that he witnessed numerous examples of sexual behavior toward male employees. By contrast, Smith never witnessed any sexual behavior targeting female employees, and other witnesses corroborated Smith’s account. Rosebud does not contest this testimony or point to any harassment targeting women. Because the sexually charged conduct at Rosebud targeted male employees but not female employees, the jury could have concluded that men were treated worse than women, and that the harassment was therefore based on sex.

Even if the jury viewed the meat department as a predominantly male workplace, the jury still could have concluded that Smith’s harassers treated male employee worse than female employees given the nature of the conduct. This case is analogous to Quick, which involved a worker at an eighty-five-percent-male muffler production plant where “bagging” (“the intentional grabbing and squeezing of another person’s testicles”) was prevalent, and the plaintiff himself was “bagged” over 100 times over two years. 90 F.3d at 1374. The Eighth Circuit concluded that the bagging of testicles by men in a predominantly male workforce was “sufficient to show that the conduct was gender based” because it constituted “[e]vidence that members of one sex were the primary targets of the harassment.” Id. at 1378; see also id. at 1379 (concluding that, because men were the victims of bagging, “a fact-finder could reasonably conclude that the treatment of men [in the workplace] was worse than the treatment of women”). The same is true here because the conduct directed at Smith (and which Smith witnessed) targeted male sexual body parts (Smith’s penis and testicles) and simulated male-on-male oral and anal sex.

Rosebud also argues that Smith did not provide evidence that male employees outside the meat department were subjected to harassment. Rosebud Br. 21.[4] Although Rosebud’s implication is unclear, to the extent that Rosebud claims that harassment is not based on sex unless all employees of that sex are harassed, there is nothing in the law that requires such a showing. See, e.g., Hively, 853 F.3d at 346 n.3 (“[A] policy need not affect every [employee of a given sex] to constitute sex discrimination.”). Moreover, the trial record established that harassment occurred outside the meat department. Smith described incidents in different areas of the store, including a storage area and a stock room. Mendoza, who initially worked in produce and later moved to the meat department, groped Smith as Smith walked through the produce section to the restroom. Finally, the jury could have determined that, to the extent the harassers targeted an all-male department rather than mixed-sex departments, such targeting only underscores that the harassers treated male employees worse than female employees.

CONCLUSION

The Commission urges this Court to affirm the district court’s denial of Rosebud’s Rule 50 motions because the jury rationally could have concluded that Smith was subjected to harassment based on his sex.

Respectfully submitted,

JAMES L. LEE s/ Anne W. King_____

Deputy General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

ANNE NOEL OCCHIALINO 131 M St. NE, Fifth Floor

Acting Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: April 3, 2018

[1] The Commission takes no position on any other issues in this appeal.

[2] Oncale cited City of Belleville in noting that some courts “suggest that workplace harassment that is sexual in content is always actionable.” 523 U.S. at 79 (emphasis added). But Johnson, issued shortly before Oncale, characterized City of Belleville more narrowly. Rather than viewing City of Belleville as “suggest[ing] that workplace harassment that is sexual in content is always actionable,” Johnson cited the decision for the proposition that “explicit sexual content or vulgarity may often take a factfinder a long way toward concluding that harassing comments were in fact based on gender.” Johnson, 125 F.3d at 412 (emphasis added). That is, this Court’s reading of City of Belleville in Johnson did not conflict with Oncale’s comment that “words ... [with] sexual content or connotations” are not “automatically discriminat[ory].”

More recently, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc), overruled City of Belleville as to the issue of sexual orientation discrimination. However, City of Belleville’s discussion of sexual orientation discrimination has no bearing on this appeal.

[3] Smith argues that the jury could have determined that Smith’s harassers were homosexual. Smith Br. 16-18. As we explain, Smith was not required to provide evidence of his harasser’s sexual orientation. Also, given the overwhelming evidence that Smith was harassed based on sex, the jury did not need to reach this conclusion in order to return a verdict for Smith. As we note supra p. 18, the jury could have deemed the harasser’s conduct “patently indicative of sexual arousal” regardless of the harassers’ sexual orientation. See Lord, 839 F.3d at 562.

[4] Smith asserts that Rosebud has waived this argument. Smith Br. 22.