A Plaintiff Alleging a Hostile Work Environment Under Title VII Does Not Have to Prove That the Harassment Unreasonably Interfered with Work Performance. 5

Conclusion. 13

Certificate of Compliance. 15

Certificate of Service. 16

Table of Authorities

Cases

Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998)........... 11

Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir. 2009).............................. 10

Clark v. United Parcel Serv., Inc., 400 F.3d 341 (6th Cir. 2005)..................... 9

Crawford v. Medina General Hosp., 96 F.3d 830 (6th Cir. 1996)................... 11

Fleenor v. Hewitt Soap Co., 81 F.3d 48 (6th Cir. 1996)................................. 10

Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263
(6th Cir. 2009)....................................................................................... 9, 12

Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008)............................................ 10

Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999)........................................... 10

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).................................. passim

Harrison v. Metropolitan Government of Nashville,
80 F.3d 1107 (6th Cir. 1996).................................................................... 11

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999)................................. 11

Kauffman v. Allied Signal, Inc., 970 F.2d 178 (6th Cir.1992)......................... 9

Los Angeles Department of Water and Power v. Manhart,
435 U.S. 702 (1978)..................................................................................... 6

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)........................... 5–7

Moore v. KUKA Welding Systems & Robot Corp.,
171 F.3d 1073 (6th Cir.1999)............................................................... 9, 12

Rabidue v. Osceola Refining Co, 805 F.2d 611 (6th Cir. 1986)...................... 12

Risinger v. Ohio Bureau of Workers’ Compensation,
883 F. 2d 475 (6th Cir. 1990)................................................................... 10

Thornton v. Federal Express Corp., 530 F.3d 451 (6th Cir. 2008).................. 11

Williams v. CSX Transportation Co., Inc., 643 F.3d 502 (6th Cir. 2011)......... 9

Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999)............... 9, 12

Younis v. Pinnacle Airlines, Inc., 610 F.3d 359 (6th Cir. 2010).................... 10

Statutes

Title VII of the Civil Rights Act of 1964
42 U.S.C. §§ 2000e–2000e-17............................................................ passim

Rules and Regulations

29 C.F.R. § 1604.11(a)..................................................................................... 6

Federal Rule of Appellate Procedure 29....................................................... 1

Statement of Interest

Congress charged the Equal Employment Opportunity Commission with interpreting, administering, and enforcing various federal laws against employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. The Commission therefore works to ensure that the federal courts of appeals interpret these statutes correctly and uniformly. This case turns in part on the elements required to establish a sex-based hostile work environment under Title VII. The district court in this case – following certain (erroneous) dicta from some of this Court’s decisions – ruled that a plaintiff must prove that sex-based harassment unreasonably interfered with her work performance to show that it violated Title VII. This requirement conflicts with longstanding Supreme Court precedent and undermines Title VII enforcement. Pursuant to Federal Rule of Appellate Procedure 29, the Commission therefore offers its views to the Court.

Statement of the Issue [1]

Does a plaintiff alleging a hostile work environment under Title VII have to prove that the harassment unreasonably interfered with her work performance?

Statement of the Case

Theresa Waldo filed this Title VII action against Consumers Energy Company alleging a sex-based hostile work environment and other claims. She lost in the first trial (in August and September 2009, R-174–190), but the court ruled that the verdict was against the clear weight of the evidence and granted her a new trial. R‑204. In the second trial (in September and October 2010, R‑242–252), the jury found in her favor and awarded $400,000 in compensatory damages and $7.5 million in punitive damages. R-254. The court denied the defendant’s motion for judgment as a matter of law and remitted the damages to the statutory cap of $300,000. R-307. The defendant has appealed. R‑324. It argues, among other things, that the district court erred in granting a new trial after the first verdict, and in denying judgment as a matter of law after the second verdict, because Waldo failed to offer sufficient evidence to establish that the harassment was severe or pervasive.

Statement of the Facts [2]

Waldo started working for Consumers Energy Company, a large utility company, in 1997. R-237 (final pre-trial order), p. 1, ¶ 2(1). In late 2002 she entered the four-year joint apprenticeship program for transmission-line workers. Id., p. 2, ¶ 4. For most of her time in the Transmission Lines Department, she was the only female utility worker. R-307 (order denying judgment as a matter of law), p. 2. She presented evidence that her supervisor told her on her first day that she would be taking a job from a man and that he would “wash her out.” Id., p. 7. Her co-workers routinely called her “bitch,” “cunt,” “stupid bitch,” and “stupid cunt,” and sometimes called her “lesbian” and “dike” [sic]. Id., pp. 7–8.

Supervisors directed her to perform tasks that were demeaning (e.g., cleaning up the tobacco juice her co-workers had spit on the ground) or dangerous (e.g., climbing a high transmission tower in freezing, stormy weather without appropriate clothing or training). R-307, p. 8.The company often provided no toilet facilities for her. Id. Co-workers refused to assist or train her or warn her about hazards. Id. She was kicked out of the apprenticeship program after three years, and the company transferred her to a different department, where she earned four dollars less an hour and had to start a new four-year apprenticeship program. Id., p. 4.

The court instructed the jury that Waldo could not prevail unless she proved that “the harassment unreasonably interfered with her work performance and created a hostile work environment.” R-301 (trial transcript, vol. 8), p. 12 (of .pdf file) (trial transcript (“TT”), p. 1480); p. 14 (TT-1482) (same). Apparently, Waldo did not challenge this aspect of the instructions (and the jury found for her on her hostile work environment claim notwithstanding this instruction).[3] In denying defendant’s renewed motion for judgment as a matter of law, the district court again reiterated this purported legal requirement. R-307, p. 5.

Argument

A Plaintiff Alleging a Hostile Work Environment Under Title VII Does Not Have to Prove That the Harassment Unreasonably Interfered with Work Performance.

The U.S. Supreme Court long ago ruled that a plaintiff does not need to prove that sex-based harassment “unreasonably interfered” with her work performance to establish an actionable hostile work environment under Title VII. The district court thus erred in imposing this requirement in this case. In reciting the elements for establishing a hostile work environment, this Court should refrain from repeating the district court’s legal error.

The Supreme Court first recognized a cause of action for a hostile work environment under Title VII in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). There, the Court emphasized that Title VII reflects “a congressional intent to ‘strike at the entire spectrum of disparate treatment of men and women in employment.’” 477 U.S. at 64 (quoting Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707, n.13 (1978)) (punctuation omitted). Thus, Vinson held that a hostile environment plaintiff does not need to prove she suffered “‘tangible loss’ of ‘an economic character.’” Id. at 64, 67. The Court quoted with approval the following portion of the EEOC’s “Guidelines on Discrimination Because of Sex”:

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment [where . . .] such conduct has the purpose or effect of [a] unreasonably interfering with an individual’s work performance or [b] creating an intimidating, hostile, or offensive working environment.”

477 U.S. at 65 (quoting 29 C.F.R. § 1604.11(a)) (emphasis and bracketed letters added). That is, the Court recognized that sexual harassment violates Title VII if it either (a) unreasonably interferes with the victim’s work performance or (b) otherwise creates a hostile environment.

In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Court held that a hostile-environment plaintiff does not need to show that the harassment “‘seriously affect[ed] [her] psychological well-being.’” Id. at 22 (second brackets added). Instead, the Court ruled, the plaintiff must show that the harassment was “‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Id. at 21 (quoting Vinson, 477 U.S. at 67). A hostile environment, the Harris Court stated, “can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” Id. at 22. However, “even without regard to these tangible effects,” the Court stressed, “the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees . . . offends Title VII’s broad rule of workplace equality.” Id. (emphasis added).

The Court emphasized that there is no “mathematically precise test” for a hostile environment. Id. Instead, the Court ruled:

whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These 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. . . . [W]hile psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

Id. at 23 (emphasis added).

In sum, the Supreme Court in Harris stated that a hostile-environment plaintiff is not required to prove that the harassment unreasonably interfered with her work performance; rather, unreasonable interference is one of a number of factors a court should consider, and “no single factor is required.” Id. at 22–23; see also id. at 25 (Scalia, J., concurring) (explaining that the test under Title VII “is not whether work has been impaired, but whether working conditions have been discriminatorily altered”).

Harris originated in this Court. See 510 U.S. at 23 (reversing and remanding 976 F.2d 733 (6th Cir. 1992)). However, this Court’s post-Harris decisions have taken inconsistent positions on whether the plaintiff must prove that the harassment unreasonably interfered with her work performance. Some cases recognize, correctly, that the plaintiff need not prove unreasonable interference at all.[4] Others hold that while “unreasonable interference with work performance” per se may not be required, the plaintiff does have to show that the harassment made it more difficult for the plaintiff to do her job.[5]

Other opinions of this Court specifically require the plaintiff to prove unreasonable interference.[6] Some require the plaintiff to show that the harassment unreasonably interfered with her work performance by creating a hostile work environment.[7] And a number of the decisions give mixed messages about the necessity of proving unreasonable interference, in one passage requiring the plaintiff to prove it, but in another passage negating that requirement.[8]

In most of these cases requiring some variation of unreasonable interference, the relevant passage is dictum. And in many, the errant analysis no doubt resulted from the inadvertent citation of pre-Harris Sixth Circuit authority. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 667 n.6 (6th Cir. 1999) (“Significantly, this Court has issued decisions in Title VII harassment cases placing dispositive emphasis on a plaintiff’s ability to prove that her work performance was adversely affected by unlawful workplace hostility,” but “these decisions erroneously relied on cases decided by this Court before Harris.”) (citing, as an example, Harrison v. Metro. Gov’t of Nashville, 80 F.3d 1107, 1118 (6th Cir. 1996) (in turn citing Rabidue v. Osceola Refining Co, 805 F.2d 611, 620 (6th Cir. 1986) (overruled by Harris, 510 U.S. at 20))). In any event, this Court’s inconsistent statements have created confusion, and some of the statements depart from clear Supreme Court guidance on this recurring legal question.[9]

The Commission acknowledges that ultimately, this Court may not need to address this legal issue in this particular appeal. [10] However, the EEOC nonetheless urges this Court to clarify its law on this point – either in this case or in a future case – to avoid the continuing confusion over a straightforward point of law that the Supreme Court settled long ago.

Conclusion

To avoid exacerbating the confusion created by these inconsistent statements, this Court should reaffirm and clarify that a plaintiff alleging an actionable hostile work environment need not prove that the harassment unreasonably interfered with her work performance. Instead, as Harris stated, unreasonable interference with work performance is one of a number of factors a jury or a judge should consider in assessing whether the harassment was sufficiently severe or pervasive to change the terms and conditions of the plaintiff’s employment.

[1] The Commission takes no position with respect to any other issue presented in this appeal.

[2] The Commission is addressing a wholly legal issue in this brief and has not reviewed the trial transcript and the exhibits. This statement of facts is based on the district court’s decisions, the pre-trial order, and the transcript of the court’s instructions to the jury.

[3] In fact, the instructions Waldo proposed for the first trial required “unreasonable interference.” R-179, p. 17; R-180, p. 6. Waldo proposed the same instructions for the second trial. R-240, p. 3; R-241, p. 13.

[4] See, e.g., Williams v. CSX Transp. Co., Inc., 643 F.3d 502, 511 (6th Cir. 2011) (requiring plaintiff to show that “the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment,” but not requiring her to show unreasonable interference) (citing Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078–79 (6th Cir.1999)); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005) (requiring plaintiff to show “the harassment created a hostile work environment,” but not unreasonable interference) (citing Williams v. Gen. Motors Corp., 187 F.3d 553, 560–61 (6th Cir. 1999)); General Motors, 187 F.3d at 560–61 (same) (citing Kauffman v. Allied Signal, Inc., 970 F.2d 178, 183-184 (6th Cir.1992)); Moore, 171 F.3d at 1078–79 (plaintiff must show “the harassment affected a term, condition, or privilege of employment,” and “[h]arassment affects a ‘term, condition or privilege of employment’ if it is sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and creates [sic] an abusive working environment”).

[5] See Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009) (recognizing that “a plaintiff need not prove a tangible decline in her work productivity; only ‘that the harassment made it more difficult to do the job’”); General Motors, 187 F.3d at 567 (same).

[6] See, e.g., Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010) (“In order to establish a claim of hostile work environment, however, a plaintiff must present evidence of harassment that ‘unreasonably interfer[es] with [his] work performance and creat[es] an objectively intimidating, hostile, or offensive work environment.’” (quoting Grace v. USCAR, 521 F.3d 655, 678 (6th Cir. 2008)) (emphasis added); Fleenor v. Hewitt Soap Co., 81 F.3d 48, 49 (6th Cir. 1996) (same).

[7] See, e.g., Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009) (plaintiff must show that “the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment”) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999) (emphasis added); Hafford, 183 F.3d at 512 (same) (citing Risinger v. Ohio Bureau of Workers’ Comp., 883 F. 2d 475, 484 (6th Cir. 1990)).

[8] See, e.g., Grace, 521 F.3d at 678 (requiring plaintiff to prove that “the harassment had the effect of unreasonably interfering with her work performance and creating an objectively intimidating, hostile, or offensive work environment,” but then acknowledging that “‘unreasonably interfering with an employee’s work performance’” is merely one item on the Harris Court’s “non-exhaustive list of factors to consider”); Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008) (same); Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 & n.5 (6th Cir. 1998) (same); cf. Crawford v. Medina Gen. Hosp., 96 F.3d 830, 835 (6th Cir. 1996) (requiring proof of unreasonable interference and hostile environment) (emphasis added), 836 (affirming summary judgment because plaintiff “has not produced any evidence tending to show that the harassment interfered with her work performance and/or created an objectively intimidating, hostile, or offensive work environment”) (emphasis added).

[9] For example, this Court’s rulings in both Gallagher and General Motors held that a hostile-environment plaintiff must prove that the harassment “made it more difficult” for her “to do [her] job.” Gallagher, 567 F.3d at 274; General Motors, 187 F.3d at 567. The Commission believes that, by its basic nature, harassment that is severe or pervasive enough to alter the terms or conditions of the plaintiff’s employment will make it more difficult for a victim to do her job. However, the EEOC sees no basis in Harris for imposing that as a rigid requirement. See 510 U.S. at 23 (holding “no single factor is required”); see also Moore, 171 F.3d at 1079 (In sum, the plaintiff’s evidence must be sufficient to show that the alleged conduct constituted an unreasonably abusive or offensive work-related environment or adversely affected the employee’s ability to do his or her job.”) (emphasis added).

[10] On appeal, Consumers’ arguments focus on whether Waldo proved that the harassment was severe or pervasive, not on whether she proved that it unreasonably interfered with her work performance. Consumers Br. at 37–39, 47–48. And from the district court’s recounting of the relevant evidence, R-307, pp. 2, 4–9, it appears there was ample support for the jury’s explicit finding, R-302, p. 3 (TT-1544), that the harassment in question did unreasonably interfere with Waldo’s work performance.