- Pregnancy, Childbirth, or Related Medical Conditions: Sex-based harassment includes harassment based on pregnancy, [23] childbirth, or related medical conditions, [24] including lactation. [25] This also can include harassment based on a woman’s reproductive decisions, such as decisions about contraception [26] or abortion. [27]
- Sexual Orientation and Gender Identity: Sex-based discrimination includes discrimination based on sexual orientation and gender identity. [28] Accordingly, sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed. [29] Examples include epithets regarding sexual orientation or gender identity; [30] physical assault; [31] harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender; [32] intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); [33] or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. [34]Example 4: Harassment Based on Gender Identity. Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her. One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.” Coworkers have asked Jennifer questions about her sexual orientation and anatomy and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers. Based on these facts, Jennifer has alleged harassment based on her gender identity. [35]
- harassment because of an individual’s request for, or receipt of, reasonable accommodation; [42]
- harassment because an individual is regarded as having an impairment, even if the individual does not have an ADA actual or record of disability; [43]
- harassment because an individual has a record of a disability, even if the individual currently does not have a disability; [44] and
- harassment based on the disability of an individual with whom the complainant is associated. [45]
Harassment based on the perception that an individual has a particular protected characteristic, for example, the belief that a person has a particular national origin or religion, is covered by federal EEO law even if the perception is incorrect. [47] Thus, harassment of a Hispanic person because the harasser believes the individual is Pakistani is national origin harassment, and harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even though the perception in both instances is incorrect.
The EEO laws also cover “associational discrimination.” This includes harassment because the complainant associates with someone in a different protected class [48] or harassment because the complainant associates with someone in the same protected class. [49] Such association may include, but is not limited to, close familial relationships, such as marriage, or close friendship with another individual belonging to a protected group. [50]
Harassment that is based on the complainant’s protected characteristic is covered even if the harasser is a member of the same protected class. [51]
Harassment may be based on more than one protected characteristic of an employee. For example, a Black woman might be harassed both because she is Black and because she is a woman, or alternatively, solely because she is a Black woman. This last example is sometimes referred to as intersectional harassment, or harassment based on the intersection of two or more protected classes. [52] If a Black woman is harassed based on stereotypes about Black women, such harassment is covered. Similarly, if a woman age forty or older is harassed based on stereotypes about older women, this harassment is covered. [53]
Harassment based on one protected characteristic, such as national origin, may also overlap with harassment based on another characteristic, such as religion, because of the close association (actual or perceived) between two protected groups. For example, harassment against an individual who is Muslim and Middle Eastern may be based on both national origin and religion. [54]
Harassment based on protected characteristics includes harassment based on social or cultural expectations regarding how persons of a particular protected group, such as persons of a particular race, national origin, or sex, usually act, appear, or behave. [55] This includes, but is not limited to, harassment based on assumptions about racial, ethnic, or other protected characteristics, or sex-based assumptions about family responsibilities, [56] suitability for leadership roles, [57] or sex roles. [58]
As discussed below in section II.B., harassment need not explicitly refer to a protected characteristic to be based on that characteristic where there is other evidence establishing causation.
All retaliation claims, even if they potentially involve unlawful retaliatory harassment, are evaluated under the legal standard for retaliation. [59] This is different from the legal standard for unlawful harassment based on a protected class. For further discussion of retaliation, including potentially retaliatory harassment, see EEOC, Enforcement Guidance on Retaliation and Related Issues § II.B.3 (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.
B. Establishing Causation
Causation is established if the evidence shows that the complainant was subjected to harassment because of the complainant’s protected characteristic, whether or not the harasser explicitly refers to that characteristic. [60] The EEO statutes do not prohibit harassment that is not based on a protected characteristic. [61]
Example 5: Harassment Is Covered Because Conduct Was Motivated by a Protected Characteristic. James, who is assigned by a temporary agency to work in a bank, alleges that his bank coworkers have subjected him to derogatory comments about his Japanese ethnicity, including epithets and teasing about his accent. Based on these facts, James has alleged harassment based on his national origin. [62]
Example 6: Harassment Is Not Covered Because There Is Insufficient Evidence That Conduct Was Motivated by a Protected Characteristic. Isaiah, a customer service representative at a financial services firm, alleges he was subjected to harassment based on his national origin and color by his coworker, Zach. Isaiah asserts that, although he previously did not interact much with Zach, last winter Zach became increasingly hostile and rude, throwing paper at Isaiah, shoving him in the hall, and threatening to beat him up or otherwise harm him. The EEO investigation revealed that Zach’s misconduct started shortly after Zach’s girlfriend, who also worked for the financial services firm, ended their relationship and started dating Isaiah. No evidence was found in the investigation to link Zach’s threats and harassing conduct to Isaiah’s national origin or color. These facts are insufficient to establish that Zach’s misconduct subjected Isaiah to harassment because of national origin and/or color.
The determination of whether hostile workplace harassment is based on a protected characteristic will depend on the totality of the circumstances. [63] Although causation must be evaluated based on the specific facts in a case, the principles discussed below will generally apply in determining causation. Not all of them will necessarily apply in every case.
- Facially discriminatory[64]conduct: Conduct that explicitly insults or threatens an individual based on a protected characteristic—such as racial epithets or graffiti, sex-based epithets, offensive comments about an individual’s disability or physical assaults that are targeted based on a protected characteristic—discriminates on that basis. [65] The motive of the individual engaging in such conduct is not relevant to whether the conduct is facially discriminatory. Such conduct also does not have to be directed at a particular worker based on that worker’s protected characteristic, nor do all workers with the protected characteristic have to be exposed to the conduct. For example, degrading workplace comments about women in general, even if they are not related to a specific female employee, show anti-female animus on their face, so no other evidence is needed to show that the comments are based on sex. [66] Further, derogatory comments about women are sex-based even if all employees are exposed to the comments. [67]Example 7: Causation Established Where Harassment Is Facially Discriminatory. Kiran is an individual with a neuropathic condition that causes his muscles to atrophy and degenerate. As a result of his condition, Kiran walks with a limp and must wear leg braces. Kiran files a charge alleging that he has been subjected to a hostile work environment based on disability. Kiran alleges that on a near-daily basis his coworkers and supervisors at the facility where he works make fun of his limp and leg braces by mimicking his gait and calling him “Forrest Gump,” “cripple,” “Gumby,” and “crippled ninja.” Based on these facts, Kiran has alleged harassment based on disability. [68]Example 8: Causation Established Where Harassment Is Facially Discriminatory. Keith and his colleagues work in an open-cubicle style office environment, and they frequently make derogatory comments about gay men and lesbians. Horatio, who is gay, overhears the comments on a regular basis and is offended by them, even though they are not directed at him. Based on these facts, the conduct is facially discriminatory and subjects Horatio to harassment based on sexual orientation (which is a form of sex-based harassment), even though he was not specifically targeted by the comments.
- Stereotyping: Harassment is based on a protected characteristic if it is based on social or cultural expectations, be they positive, negative, or neutral, regarding how persons of a particular protected group usually act or appear. [69] This includes harassment based on sex-based assumptions about family responsibilities, [70] suitability for leadership roles, [71] sex roles, [72] the expression of sexual orientation or gender identity, [73] or harassment based on stereotypes about racial or ethnic characteristics. Such stereotyping need not be motivated by animus or hostility toward that group. [74] For example, age-based harassment might include comments that an older employee should consider retirement so that the employee can enjoy the “golden years.” [75] Comments that a female worker with young children should switch to a part-time schedule so that she can spend more time with her children may demonstrate harassment on the basis of sex. [76] Similarly, derogatory comments involving racial stereotypes may constitute race-based harassment. Example 9: Causation Established Based on Sex Stereotyping. Eric, an iron worker, alleges he was subjected to sexual harassment from his foreman, Joshua. The investigation reveals that Joshua found a remark Eric made to be “feminine” and then began calling Eric “pu__y,” “princess,” and “fa___t,” often several times a day. Several times a week, Joshua approached Eric from behind and simulated intercourse with him. On about ten occasions, Joshua exposed himself to Eric. Based on these facts, the investigator concludes that Joshua targeted Eric based on his perception that Eric did not conform to traditional male stereotypes and subjected Eric to harassment based on sex. [77]
- Context: Conduct must be evaluated within the context in which it arises. [78] In some cases, the discriminatory character of conduct that is not facially discriminatory becomes clear when examined within the specific context in which the conduct takes place or within a larger social context. For example, the Supreme Court observed that use of the term “boy” to refer to a Black man may reflect racial animus depending on such factors as “context, inflection, tone of voice, local custom, and historical usage.” [79] In some contexts, terms that may not be facially discriminatory when viewed in isolation, such as “you people,” may operate as “code words” revealing an intent to discriminate against a protected group. [80]Example 10: Causation Established by Social Context. Ron, a Black truck driver, finds banana peels on his truck on multiple occasions. After the third of these occasions, Ron sees two white coworkers watching his reaction to the banana peels. An investigation reveals no evidence that banana peels were found on any other truck or that Ron found any trash on his truck besides the banana peels. Based on these facts, an investigator concludes that the appearance of banana peels on Ron’s truck was not coincidental. The investigator further finds that the use of banana peels invokes “monkey imagery” that, given the history of racial stereotypes against Black individuals, was intended as a racial insult. It thus constitutes harassment based on race. [81]
- Link between harassment that is not explicitly connected to a protected basis and facially discriminatory conduct: Conduct that is neutral on its face may be discriminatory when linked to other conduct that is facially discriminatory, such as race-based epithets or derogatory comments about individuals with disabilities. Facially neutral conduct therefore should not be separated from facially discriminatory conduct and discounted as non-discriminatory. [82] In some instances, however, facially discriminatory conduct may not be sufficiently related to facially neutral conduct to establish that the latter also was discriminatory. [83]Example 11: Facially Neutral Conduct Sufficiently Related to Religious Bias. Imani, a devout Christian employed as a customer service representative, alleges that coworkers made offensive comments or engaged in other hostile conduct related to her religious beliefs and practices, including suggesting that Imani belonged to a cult or worshipped the devil; calling her religious beliefs “crazy”; drawing devil horns, a devil tail, and a pitchfork on her Christmas photo; and cursing the Bible and teasing her about Bible reading. In addition, the same coworkers excluded Imani from office parties and subjected her to curse words that the coworkers knew Imani regarded as offensive because of her religion. Although some of the coworkers’ conduct was facially neutral with respect to religion, the investigator concludes that such conduct was closely related to the religious harassment and thus that the entire pattern of harassment was based on Imani’s religion. [84]
- Timing: If harassment began or escalated shortly after the harasser learned of the complainant’s protected status, e.g., pregnancy, sexual orientation, gender identity, religion, or disability, the timing may suggest that the harassment was discriminatory. [85]
- Comparative evidence: Evidence showing qualitative and/or quantitative differences in the conduct directed against individuals in different groups can support an inference that the harassment of workers subjected to more, or more severe, harassment was based on their protected status. [86]Example 12: Comparative Evidence Gives Rise to Inference that Harassing Conduct Is Based on a Protected Characteristic. Tyler is a manager for an educational services firm. Tyler directly supervises two women, Kailey and Anu, and two men, Sandeep and Levi. Tyler grants Kailey’s request for time off to visit her dying sister. When Kailey returns, Tyler confronts her and yells at her for not reading her “damn email” while she was away. From then on, Tyler regularly hovers over Kailey and Anu as they work to make sure they don’t “mess up.” Tyler also yells and shakes his fist at Kailey and Anu when he is angry at them. This conduct continues, and Kailey and Anu file EEOC charges alleging harassment based on sex. During the investigation, the investigator finds that Sandeep and Levi report that Tyler, although occasionally irritable, generally engages in friendly banter with them that is different from the aggressiveness that Tyler displays toward female employees. Tyler sometimes even allows Sandeep and Levi to relax in his office in the afternoons, doing little or no work. Tyler also permits Sandeep and Levi to leave the office early and does not monitor their work performance. Tyler’s different treatment of women and men who are similarly situated would support an investigator’s conclusion that Tyler’s treatment of Kailey and Anu was based on their sex. [87]
- Causation Issues Related to Sex-Based Harassment. A claim of sex-based harassment may rely on any of the causation theories described in the preceding sections and in this section. The Supreme Court has addressed three non-exclusive evidentiary routes for establishing causation in a sexual harassment claim: (1) explicit or implicit proposals of sexual activity; (2) general hostility toward members of the complainant’s sex ; and (3) comparative evidence showing how the harasser treated persons who shared the complainant’s sex compared to the harasser’s treatment of those who did not. [88] As noted, these three routes are not exclusive; they are examples of ways in which harassment based on sex (including pregnancy, sexual orientation, and gender identity) may be established. [89] For example, harassment also is sex-based if the harassment occurs because of sex stereotyping. [90] Additionally, hostility may be directed toward only one individual based on sex. [91] The same legal principles apply regardless of whether the harasser and complainant are of the same sex. [92]
III. Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment
A. Background: Distinguishing an Explicit Change to the Terms, Conditions, or Privileges of Employment from a Hostile Work Environment
For an employer to be liable under an EEO statute for workplace harassment based on a protected trait, the harassment must affect a “term, condition, or privilege” of employment. [93] In Meritor Savings Bank, FSB v. Vinson, the Supreme Court provided two examples of such unlawful harassment: (1) an explicit change to the terms or conditions of employment that is linked to harassment based on a protected characteristic, e.g., firing an employee because the employee rejected sexual advances, and (2) conduct that constructively [94] changes the terms or conditions of employment through creation of a hostile work environment. [95]
The first type of sexual harassment claim was initially described as “quid pro quo” harassment. [96] In early sexual harassment cases, quid pro quo described a claim in which a supervisor carried out a threat to retaliate against an employee for rejecting the supervisor’s advances. [97]
However, citing the Supreme Court’s 1998 decision in Burlington Industries, Inc. v. Ellerth, the Second Circuit later explained that a quid pro quo allegation now only “makes a factual claim about the particular mechanism by which a plaintiff’s sex became the basis for an adverse alteration of the terms or conditions of [the plaintiff’s] employment.” [98] The underlying issue in a quid pro quo allegation is the same as in any claim of disparate treatment (i.e., intentional discrimination): whether the claimant has satisfied the statutory requirement of establishing “discriminat[ion] . . . because of sex” affecting the “terms [or] conditions of employment.” [99] For example, if a supervisor threatens to deny an employee a promotion or other job benefit for rejecting sexual advances and subsequently denies the job benefit, the denial of the job benefit itself is an explicit change to the terms and conditions of employment and thus constitutes unlawful sex discrimination. [100] Even if the threat is never carried out, the threat itself is a particularly severe form of harassment and would constitute unlawful sex discrimination if it establishes a hostile work environment, either alone or in concert with other harassing conduct, as described below. [101]
To be actionable absent such an explicit change to the terms or conditions of employment, the harassment must change the terms or conditions of employment by creating a hostile work environment. Such harassment is actionable if, as a whole, the conduct is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” [102] As the Supreme Court explained with respect to Title VII in Harris v. Forklift Systems, Inc.:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. [103]
Thus, absent an explicit change to the terms or conditions of employment, harassing conduct based on a protected characteristic is actionable when it is sufficiently severe or pervasive to create an objectively and subjectively hostile work environment. [104] A hostile work environment claim may encompass any hostile conduct that affects the complainant’s work environment, including employer conduct that may be independently actionable. For example, if a woman was demoted because she refused to submit to unwanted sexual advances, the demotion would be independently actionable as sex discrimination and also actionable as part of a hostile work environment. [105]
The EEO statutes are not limited to discriminatory conduct that has tangible or economic effects and instead “strike at the entire spectrum of disparate treatment.” [106] However, these statutes also do not impose a general civility code that covers “run-of-the-mill boorish, juvenile, or annoying behavior.” [107] As discussed below in section III.B., the severe-or-pervasive standard takes a “middle path” that requires the conduct to be more than merely offensive but does not require that the conduct cause psychological harm. [108]
Whether conduct creates a hostile work environment depends on the totality of the circumstances, and no single factor is determinative. [109] Some such circumstances include the frequency and severity of the conduct; the degree to which the conduct was physically threatening or humiliating; the degree to which the conduct interfered with an employee’s work performance; and the degree to which it caused the complainant psychological harm. [110] If harassing acts are based on multiple protected characteristics, and the acts are sufficiently related to be considered part of the same hostile work environment, then all the acts should be considered together in determining whether the conduct created a hostile work environment. [111]
Example 13: Age-Based Harassment Creates Hostile Work Environment. Henry is a 62-year-old consultant at a professional services company. Ryan, his supervisor, calls him “old man” on a daily basis. Since Henry’s 60th birthday, Ryan has repeatedly asked him when he plans to retire, saying he can’t wait to bring in “young blood” and “fresh ideas.” During a recent staff meeting, Ryan reminded staff to get their flu shots, then looked at Henry and said, “Although I wouldn’t be heartbroken if the flu took out some of the old timers.” Henry asked Ryan if he was referring to him, and Ryan replied, “Absolutely, old man.” Henry reports feeling targeted and ashamed by Ryan’s comments. Based on these facts, the investigator concludes that Ryan has subjected Henry to a hostile work environment based on age. [112]
B. Hostile Work Environment
These are key questions that typically arise in evaluating a hostile work environment claim:
- Was the conduct both objectively and subjectively hostile?
- Objective hostility: was the conduct sufficiently severe or pervasive to create a hostile work environment?
- Subjective hostility: did the complainant actually find the conduct hostile?
- Can conduct that occurred outside the workplace be considered?
- Can conduct that was not specifically directed at the complainant be considered?
Even if a complainant subjectively finds conduct based on a protected characteristic to be offensive, such conduct does not constitute a violation of an EEO law unless it is also sufficiently severe or pervasive to create an objectively hostile work environment. [113] Conduct need not be both severe and pervasive: The more severe the harassment, the less pervasive it must be, and vice versa, to establish a hostile work environment. [114] There is neither a “magic number” of harassing incidents that automatically establishes a hostile work environment nor a minimum threshold for severity. [115] Whether a series of events is sufficiently severe or pervasive to create a hostile work environment depends on the specific facts of each case, viewed in light of the totality of the circumstances. [116]
A hostile work environment may include a variety of offensive acts and conduct, including physical or sexual assaults or threats; offensive jokes, slurs, epithets, or name calling; intimidation, bullying, ridicule, or mockery; insults or put-downs; ostracism; offensive objects or pictures; and interference with work performance.
A complainant need not show that discriminatory conduct harmed the complainant’s work performance to prove a hostile work environment. Rather, the evidence must establish that the harassment was sufficiently severe or pervasive to “alter[] the terms or conditions” of the complainant’s employment. [117] Similarly, actionable harassment can be established in the absence of psychological injury, though evidence of psychological harm from the harassment may be relevant to demonstrating a hostile work environment. [118]
Example 14: Hostile Work Environment Created Even Though Complainant Continued to Perform Well. Irina works as a sales representative for a freight transportation company. She and her coworkers sit in adjacent cubicles. Her coworkers, both men and women, often discuss their sexual liaisons in graphic detail; use sex-based epithets when describing women; look at pornographic materials; and, on weekend shifts, occasionally come to the office only partly clothed (e.g., a man not wearing a shirt, another man wearing only a towel after leaving the gym). Irina was horrified by the loudness and vulgarity of the conduct, and she frequently left the office crying. Despite this conduct, however, Irina could meet her daily and weekly quotas, and her work continued to be rated in her performance review as above average. Irina filed an EEOC charge alleging a hostile work environment based on sex. Based on these facts, an EEOC investigator concludes that Irina was subjected to a hostile work environment. Although the harassment did not result in a decline in her work performance or in any apparent psychological injury, the nature of the conduct and Irina’s reactions to it are sufficient to establish that the ongoing sexual conduct creates a hostile work environment because the conduct made it more difficult for a reasonable person in Irina’s situation to do her job. [119]
1. Severity
a. General Principles
Because a “supervisor’s power and authority invests his or her harassing conduct with a particular threatening character,” [120] harassment by a supervisor or other individual with authority over the complainant typically has more impact on a complainant’s work environment than similar misconduct by an individual lacking such authority. [121] Moreover, the severity of the harassment may be heightened if the complainant reasonably believes that the harasser has authority over her, even if that belief is mistaken. [122]
The more directly harassment affects the complainant, the more likely it is to negatively affect the complainant’s work environment. Thus, harassment is generally more probative of a hostile work environment if it occurs in the complainant’s presence than if the complainant learns about it secondhand. Nevertheless, a complainant’s knowledge of harassing conduct that other employees have separately experienced may be relevant to determining the severity of the harassment in the complainant’s work environment. [123]
Some conduct may be more severe if it occurs in the presence of others, such as the complainant’s coequals, subordinates, or clients. For example, a worker’s sexually degrading comments may be more severe if made in the presence of the complainant and the complainant’s subordinates rather than solely in the complainant’s presence due to the humiliating nature of the interaction. [124] Conversely, some conduct may be more severe when the complainant is alone with the offending individual because the isolation may enhance the threatening nature of the discriminatory conduct. [125]
Because the severity of harassment depends on all of the circumstances, the considerations discussed above are not exclusive. Other factors may be relevant in evaluating the severity of alleged harassment. For example, the severity of harassment may be enhanced if a complainant has reason to be believe that the harasser is insulated from corrective action. This could arise if the harasser is a highly valued employee, or the employer has previously failed to take appropriate corrective action in similar circumstances. [126]
b. Hostile Work Environment Based on a Single Incident of Harassment
In limited circumstances, a single incident of harassment can result in a hostile work environment. The following are examples of conduct that courts have found sufficiently severe to establish a hostile work environment based on a single incident:
- Sexual assault, [127]
- Sexual touching of an intimate body part, [128]
- Physical violence or the threat of physical violence, [129]
- The use of symbols of violence or hatred toward individuals sharing the same protected characteristic, such as a swastika, an image of a Klansman’s hood, or a noose, [130]
- The use of animal imagery that denigrates individuals sharing a protected characteristic, such as comparing the employee to a monkey, ape, or other animal, [131]
- A threat to deny job benefits for rejecting sexual advances, [132] and
- The use of the “n-word” by a supervisor in the presence of a Black subordinate. [133]
Using epithets based on protected characteristics is a serious form of workplace harassment. As stated by one court, epithets are “intensely degrading, deriving their power to wound not only from their meaning but also from ‘the disgust and violence they express phonetically.’” [134]
2. Pervasiveness
Most hostile work environment claims involve a series of acts. More frequent but less serious incidents can create a hostile work environment. [135] The focus is on the cumulative effect of these acts, rather than on the individual acts themselves. As noted above, there is not a “magic number” of harassing incidents that automatically establishes a hostile work environment. Whether a series of events is sufficiently severe or pervasive to create a hostile work environment depends on the specific facts of each case. [136] Relevant considerations may include the frequency of the conduct [137] and the relationship between the number of incidents and the time period over which they occurred. [138]
Example 15: Hostile Work Environment Created by Pervasive Sexual Harassment. Juan, who works as a passenger service assistant for an airline, alleges that Lydia, a female coworker, sexually harassed him. The evidence shows that Lydia directed sexual overtures and other sex-based conduct at Juan as often as several times a week over a period of six months, despite his repeated insistence that he was not interested. For example, Lydia gave Juan revealing photographs of herself, sent him notes asking for a date, described fantasies about him, and persistently told him how attractive he was and how much she loved him. Based on these facts, an investigator concludes that, regardless of whether the conduct was severe, it was sufficiently pervasive to create a hostile work environment. [139]
Example 16: Extensive Sexual Favoritism Creating a Hostile Work Environment. Tasanee, an employee at a government agency, alleges that she has been subjected to a hostile work environment based on her sex. The evidence shows that supervisors engaged in consensual sexual relationships with female subordinates that were publicly known and behaved in sexually charged ways with other agency employees in public. Supervisors rewarded the subordinates who were in relationships or who acceded without objection to the behavior by granting them promotions, awards, and other benefits. Because the conduct was pervasive and could reasonably affect the work performance and motivation of other workers who found the extensive favoritism offensive, the evidence is sufficient to show that Tasanee was subjected to a sexually hostile work environment. [140]
C. Subjectively and Objectively Hostile Work Environment
The Supreme Court explained in 1993 in Harris v. Forklift Systems, Inc. that to establish a hostile work environment, offensive conduct must be both subjectively hostile and objectively hostile. [141]
1. Conduct That Is Subjectively and Objectively Hostile Is Also Necessarily Unwelcome
Although a complainant alleging a hostile work environment must show that the harassment was unwelcome, conduct that is subjectively and objectively hostile also is necessarily unwelcome. In the Commission’s view, demonstrating unwelcomeness logically is part of demonstrating subjective hostility. If, for example, a complainant establishes that a series of lewd, sexist, and derogatory comments were subjectively hostile, then those comments also would be, by definition, unwelcome. In some circumstances, evidence of unwelcomeness also may be relevant to the showing of objective hostility.
2. Derivation of Unwelcomeness Inquiry
The unwelcomeness inquiry derives from the Supreme Court’s 1986 decision in Meritor Savings Bank, FSB v. Vinson, where the Court stated that the “[t]he gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome,’” [142] and from the 1980 EEOC Guidelines upon which the Court relied. [143] In Meritor, the Court focused on the concept of unwelcomeness in order to distinguish it from the concept of voluntariness, noting that the complainant’s participation in the challenged conduct did not necessarily mean that she found it welcome. [144] When the Supreme Court refined the hostile work environment analysis in 1993, in Harris, to require a showing that the conduct was both subjectively and objectively hostile, [145] the Court did not explicitly eliminate unwelcomeness as the gravamen of a harassment claim. However, it is the Commission’s position that this requirement was effectively subsumed into the Court’s new requirement of demonstrating that conduct was both subjectively and objectively hostile.
Following Harris, a number of courts have addressed unwelcomeness as part of determining subjective hostility, because conduct that is subjectively hostile will also, necessarily, be unwelcome. [146] Other courts continue to analyze “unwelcomeness” as a separate element in a plaintiff’s prima facie harassment case, in addition to the “subjectively and objectively hostile work environment” analysis. [147] In the Commission’s view, this approach may import redundancy or confusion into the legal analysis of harassment and therefore be an unnecessary step in a court’s analysis.
3. Subjectively Hostile Work Environment
In general, the complainant’s own statement that the complainant perceived conduct as hostile is sufficient to establish subjective hostility. [148] A subjectively hostile work environment also may be established if there is evidence that an individual made a complaint about the conduct, as it follows logically that the individual found it hostile. [149] Similarly, if there is evidence that the individual complained to family, friends, or coworkers about the conduct, it is likely that the individual found it subjectively hostile. [150]
Whether conduct is subjectively hostile depends on the perspective of the complainant. Thus, if a male complainant does not welcome sexual advances from a female supervisor, it is irrelevant whether other men in the workplace would have welcomed these advances. [151] Moreover, the fact that an individual tolerated or even participated in the conduct is not dispositive; for example, an employee might have experienced derogatory comments or other conduct targeted at the employee’s racial or national origin group as hostile but felt that there was no other choice but to “go along to get along.” [152]
The complainant’s subjective perception may be at issue, however, if there is evidence that the complainant did not find the harassment to be hostile, such as the complainant’s statement that the complainant did not feel harassed by the challenged conduct. [153]
A complainant’s subjective perception, however, can change over time. For example, a complainant who welcomed certain conduct in the past might subsequently perceive similar conduct as hostile after a certain point in time, such as after the end of a romantic relationship. [154] Moreover, although the complainant may welcome certain conduct, such as sexually tinged conduct, from a particular employee, that does not mean that the complainant also would welcome it from other employees. [155] Nor does acceptance of one form of sexually tinged conduct mean that the complainant would welcome all sexually tinged conduct, particularly conduct of a more severe nature. [156]
4. Objectively Hostile Work Environment
In addition to being subjectively hostile, the conduct in question must create an objectively hostile work environment, that is, an environment that a reasonable person in the plaintiff’s position would find hostile. [157] The impact of conduct must be evaluated in the context of “surrounding circumstances, expectations, and relationships.” [158]
The determination of whether harassment was objectively hostile requires “an appropriate sensitivity to social context” [159] and should be made from the perspective of a reasonable person of the complainant’s protected class. [160] Thus, if a Black individual alleges racial harassment, the harassment should be evaluated from the perspective of a reasonable Black individual in the same circumstances as the complainant. Conduct can establish a hostile work environment even if some members of the complainant’s protected class did not or would not find it to be hostile. [161]
In addition to protected status, other personal or situational [162] characteristics of a particular complainant may affect whether the complainant reasonably perceives certain conduct as creating a hostile work environment. For example, if a teenager was harassed by a substantially older individual, then the age difference may intensify the perceived hostility of the behavior, which would be relevant to both subjective and objective hostility. [163] Similarly, if an undocumented worker is targeted for harassment, then the heightened risk of deportation may contribute to both subjective and objective hostility. [164]
Example 17: Religion-Based Harassment Creates an Objectively Hostile Work Environment. Josephine, an IT support specialist at a regional medical facility in the South, attends an employee appreciation barbecue lunch hosted by her employer. When asked by colleagues why Josephine is not eating any of the barbecued pig, Josephine explains that she is Jewish and observes her religion’s kashrut dietary laws, which prohibit her from eating pork. After the barbecue, a few coworkers begin making comments to or within earshot of Josephine, such as calling Josephine “Jew-sphine,” questioning why Josephine even works because she must have a lot of “Jew money” [165] in savings accounts, and stating that “Jews control the media.” Based on these facts, the investigator concludes that this conduct, viewed from the perspective of a reasonable Jewish person, created an objectively hostile work environment based on religion.
Example 18: Disability-Based Harassment Creates an Objectively Hostile Work Environment. Jin, a cook, has Post-Traumatic Stress Disorder (PTSD). He tells his coworkers that he served in Iraq on active duty, has PTSD, and as a result, is uncomfortable with sudden loud noises and unanticipated physical contact. He asks them to tell him in advance about any anticipated loud noises, and requests that they avoid approaching him from behind without warning. Lila, a server, regularly drops or bangs on metal trash cans and sneaks up behind Jin while he is working, because she thinks his response is funny. Jin is so rattled after these encounters that he sometimes mixes up orders or fails to cook the food properly. Jin repeatedly tells Lila to stop, to no avail, and the conduct continues. Based on these facts, the investigator concludes that Lila’s harassment, viewed from the perspective of a reasonable person with PTSD, created an objectively hostile work environment based on disability.
Although conduct must be evaluated in the context of the specific work environment in which it arose, there is no “crude environment” exception to Title VII if the harassment otherwise meets the standard of severe or pervasive harassing conduct. [166] Moreover, prevailing workplace culture does not excuse discriminatory conduct. [167] For example, public displays of pornography or sexually suggestive imagery demeaning women can contribute to an objectively hostile work environment for female employees, even if it is a long-standing practice. [168]
As discussed above, in the Commission’s view, demonstrating unwelcomeness logically is inherently part of demonstrating subjective hostility. In some circumstances, evidence of unwelcomeness may also be relevant to the showing of objective hostility. [169] When analyzing whether conduct is objectively hostile, some courts have focused on whether the harasser had notice that the conduct was unwelcome—in other words, whether the complainant had communicated, or the alleged harasser otherwise had reason to know, that the complainant did not welcome it. [170] Such notice may be relevant in determining whether it is objectively reasonable for a person in the complainant’s position to have perceived ongoing conduct as hostile. [171] For example, flirtatious behavior or asking an individual out on a date may, or may not, be facially offensive, depending on the circumstances. If the actor is on notice, however, that the conduct is unwelcome, then a reasonable person in the complainant’s position may perceive the actor’s persistence in flirting or asking for a date to be hostile. [172]
The same may be true in the context of religious expression. If a religious employee attempts to persuade another employee of the correctness of his beliefs, the conduct is not necessarily objectively hostile. If, however, the employee objects to the discussion but the other employee nonetheless continues, a reasonable person in the complainant’s position may find it to be hostile. [173]
D. The Scope of Hostile Work Environment Claims
1. Conduct Must Be Sufficiently Related
Because the incidents that make up a hostile work environment claim constitute a single unlawful employment practice, the complainant can challenge an entire pattern of conduct, as long as at least one incident that contributed to the hostile work environment is timely. [174] The earlier conduct, however, must be sufficiently related to the later conduct to be “part of the same actionable hostile work environment practice” claim. [175] Relevant considerations depend on the specific facts but may include the similarity of the actions involved, the frequency of the conduct, and whether the same individuals engaged in the conduct. [176]
A hostile work environment claim may include any hostile conduct that affects the complainant’s work environment, even conduct that may be independently actionable. For example, a racially discriminatory transfer to a less desirable position that is separately actionable also may contribute to a racially hostile work environment if the action was taken by a supervisor who frequently used racial slurs. [177] Under such circumstances, the transfer could be challenged as part of a hostile work environment claim and would be considered in determining whether the conduct was sufficiently severe or pervasive to create a hostile work environment. In addition, if the transfer occurred within the filing period, then the complainant could also bring a separate claim alleging discriminatory transfer. For more information on the timeliness of hostile work environment claims, see EEOC, Compliance Manual Section 2: Threshold Issues § 2-IV.C.1.b (2009), https://www.eeoc.gov/policy/docs/threshold.html#2-IV-C-1-b.
Example 19: Earlier Harassment Sufficiently Related to Later Harassment. Noreen alleges that she was subjected to harassment based on her religion (Islam) and national origin (Pakistani). Noreen says that her team leader in the packaging department, Josiah, made offensive comments about her accent, religion, and ethnicity. Noreen complained to the plant manager, who did not take any action, and Josiah’s harassment continued. At her own request, Noreen was transferred to the stretch wrap department. Soon after, she saw Josiah speaking with Franklin, a stretch wrap employee, while pointing at Noreen and laughing. Starting the next day, Franklin regularly referred to Noreen using religious and ethnic slurs, including “muzzie,” “terrorist,” and “paki.” Franklin also refused to fill in for her when she needed to take a break. Noreen complained to the plant manager about Franklin’s conduct, but again the plant manager did not take any action. Here, Noreen experienced harassment in two different departments by different harassers, but the conduct was similar in nature. The harassment in the second department occurred shortly after the harassment in the first department; the harassment in the second department started after the two harassers met; and the plant manager was responsible for addressing harassment in both departments. Based on these facts, the investigator concludes that the harassment experienced by Noreen in the two departments constitutes part of the same hostile work environment claim. [178]
Example 20: Earlier Harassment Insufficiently Related to Later Harassment. Cassandra, who worked for a printing company, alleges that she was subjected to sexual harassment when she was in the production department and also after she was transferred to the estimating department. Cassandra says that, while in the production department, she was exposed to sexually explicit discussions, sexual jokes, and vulgar language. Although she was no longer exposed to most of the harassment after her transfer to the estimating department, Cassandra overheard a male worker on the other side of her cubicle wall tell someone that if a weekend trip with one of his female friends “was not a sleepover, then she wasn’t worth the trip.” The sleepover comment was made nearly a year after Cassandra’s transfer and was not directed at Cassandra or made for her to hear. Other than that comment, Cassandra did not experience any alleged harassment after her transfer to the estimating department, which did not interact with the production department. Based on these facts, the investigator concludes that the alleged harassment experienced by Cassandra in the production department was not part of the same hostile work environment claim as the alleged harassment in the estimating department. [179]
2. Types of Conduct
a. Conduct That Is Not Directed at the Complainant
Harassing conduct can affect an employee’s work environment even if it is not directed at that employee, although the more directly it affects the complainant, the more probative it is likely to be of a hostile work environment. [180] For instance, the use of gender-based epithets may contribute to a hostile work environment for women even if the epithets are not directed at them. [181] Similarly, anonymous harassment, such as racist or anti-Semitic graffiti or the display of a noose or a swastika, may create or contribute to a hostile work environment, even if it is not clearly directed at any particular employees. [182] Offensive conduct that is directed at other individuals of the complainant’s protected class also may contribute to a hostile work environment for the complainant. Such conduct may even occur outside of the complainant’s presence as long as the complainant becomes aware of the conduct during the complainant’s employment and it is sufficiently related to the complainant’s work environment. [183]
Example 21: Conduct Not Directed Against Complainant that Contributes to a Hostile Work Environment. Lilliana is the District Manager for an insurance company. Peter reports to Lilliana and is an Assistant District Manager; he oversees four sales representatives. Lilliana is white, and Peter and the four sales representatives are Black. Over the two years that Peter has worked for the insurance company, Lilliana has used the term “n____r” when talking to Peter’s subordinates; she also told Peter that his “black sales representatives are too dumb to be insurance agents”; and on another occasion she called the corporate office to ask them to stop hiring Black sales representatives. Some of the comments were made in Peter’s presence, and Peter learned about other comments secondhand, when sales representatives complained to him about them. Based on these facts, an investigator finds that Lilliana’s conduct toward Peter’s subordinates contributed to a hostile work environment for Peter because the comments either occurred in Peter’s presence or he learned about them from others. [184]
In some circumstances, an individual who has not personally been subjected to unlawful harassment based on their protected status may be able to file an EEOC charge and a lawsuit alleging that they have been harmed by unlawful harassment of a third party. [185]
Example 22: Individual Harmed by Unlawful Harassment of Third Party. Sophie, who is white and Christian, works in an accounting office with her coworker Quentin, who is Black and Muslim, and their mutual supervisor, Jordan, who is white and Christian. They work together in the office. Jordan makes frequent offensive comments about Quentin’s race and religion. One day, after referring to Quentin with the n-word and calling him a “terrorist,” Jordan tells Sophie to hide Quentin’s work files on the office server to “make his life difficult” and to reschedule a series of important team meetings so that they will conflict with Quentin’s daily prayers, effectively excluding him from the meetings. Sophie initially objects, but Jordan tells her that “if you want a future here, you better do what I tell you.” Fearing workplace repercussions if she fails to comply, Sophie reluctantly participates in the ongoing race- and religion-based harassment of Quentin.
Sophie and Quentin both file EEOC charges. Quentin’s allegation is that he faced a hostile work environment based on his race and religion; Sophie’s allegation is that Quentin faced a hostile work environment based on his race and religion and she was forced to participate in it. Based on evidence that the harassment occurred on a regular basis and included serious and offensive conduct, including harassment designed to interfere with Quentin's work performance and ostracize him, the investigator concludes that Quentin was subjected to a hostile work environment based on his race and religion.
The investigator further concludes that, although Sophie was not personally subjected to unlawful harassment based on her race, religion, or other protected status, she had standing to file a charge and obtain relief for any harm she suffered as a result of the unlawful harassment of Quentin, because she was required as part of her job duties to participate in the harassment. [186]
b. Conduct That Occurs in Work-Related Context Outside of Regular Place of Work
A hostile work environment claim may include conduct that occurs in a work-related context outside an employee’s regular workplace. [187] For instance, harassment directed at an employee during the course of employer-required training occurs within the “work environment,” even if the training is not conducted at the employer’s facility. [188]
Example 23: Harassment During Off-Site Employer-Hosted Party Was Within Work Environment. Fatima’s employer hosts its annual holiday party in a private restaurant. One of her coworkers, Tony, drinks to excess, and at the end of the evening attempts to grope and kiss Fatima. Although Tony’s behavior occurred outside Fatima’s regular workplace and at a private restaurant unaffiliated with her employer, it occurred in a work-related context. Therefore, based on these facts, the harassment occurred in Fatima’s work environment for purposes of a Title VII sexual harassment claim.
Conduct also occurs within the work environment if it is conveyed using work-related communications systems, accounts, or platforms, such as an employer’s email system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, or official social media accounts. [189] As with conduct within a physical work environment, conduct within a virtual work environment can contribute to a hostile work environment. This can include, for instance, sexist comments made during a video meeting, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.
Example 24: Conduct on Employer’s Email System Contributing to a Hostile Work Environment. Ted and Perry are coworkers in an accounting firm. Ted is white, and Perry is Black. Ted sends jokes every Monday morning from his work computer and work email account to colleagues, including Perry. Many of the jokes are off-color and involve racial stereotypes, including stereotypes about Black individuals. Perry complains to Ted and their mutual supervisor after several weeks of Ted’s emails, but Ted is not instructed to stop. After several more weekly emails, Perry files a charge of discrimination with the EEOC. Based on these facts, an investigator finds that the racial jokes sent by Ted contributed to a hostile work environment for Perry because, among other reasons, they were sent using Ted’s work computer and work email account and were sent to colleagues in the workplace.
c. Conduct That Occurs in a Non-Work-Related Context, But with Impact on the Workplace
Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment. [190] For instance, if a Black employee is subjected to racist slurs and physically assaulted by white coworkers who encounter him on a city street, the presence of those same coworkers in the Black employee’s workplace can result in a hostile work environment. [191]
Conduct that can affect the terms and conditions of employment, even though it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace. [192] For example, if an Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a racially hostile work environment.
Example 25: Conduct on Social Media Platform Outside Workplace. Rochelle, a Black woman, works at an assisted living facility as a home health aide. She alleges that two Black coworkers of Caribbean descent, Martina and Terri, subjected her to a hostile work environment based on national origin. The investigation reveals that Martina’s and Terri’s harassing conduct included mocking Rochelle, blocking doorways, and interfering with her work, and that it culminated in an offensive post on the social media service Instagram. In the post, Martina and Terri included two images of Rochelle juxtaposed with an image of the fictional ape Cornelius from the movie The Planet of the Apes, along with text explicitly comparing Rochelle to Cornelius. Rochelle learned about the post from another coworker, Jenna. Based on these facts, an investigator finds that the combined conduct, including the Instagram post, was sufficient to create a hostile work environment. [193]
Given the proliferation of digital technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.
Finally, harassment by a supervisor that occurs outside the workplace is more likely to contribute to a hostile work environment than similar conduct by coworkers, given a supervisor’s ability to affect a subordinate’s employment status. [194]
IV. Liability
A. Overview of Liability Standards in Harassment Cases
When a complainant establishes that the employer made an explicit change to a term, condition, or privilege of employment linked to harassment based on a protected characteristic (sometimes described as “quid pro quo” as described in § III.A.), the employer is liable and there is no defense. [195]
In cases alleging a hostile work environment, one or more standards of liability will apply. Which standards are applicable depends on the relationship of the harasser to the employer and the nature of the hostile work environment. Each standard is discussed in detail in §§ IV.B. and IV.C., below. To summarize:
- If the harasser is a proxy or alter ego of the employer, the employer is automatically liable for the hostile work environment created by the harasser’s conduct. The actions of the harasser are considered the actions of the employer, and there is no defense to liability.
- If the harasser is a supervisor and the hostile work environment includes a tangible employment action against the victim, the employer is vicariously liable for the harasser’s conduct and there is no defense to liability. This is true even if the supervisor is not a proxy or alter ego.
- If the harasser is a supervisor (but not a proxy or alter ego) and the hostile work environment does not include a tangible employment action, the employer is vicariously liable for the actions of the harasser but the employer may limit its liability or damages under this standard of liability if it can prove the Faragher-Ellerth affirmative defense, which is explained below at § IV.C.2.b.
- If the harasser is any person other than a proxy, alter ego, or supervisor, the employer is liable for the hostile work environment created by the harasser’s conduct if the employer was negligent in that it failed to act reasonably to prevent the harassment or to take reasonable corrective action in response to the harassment when the employer was aware or should have been aware of it.
Negligence provides a minimum standard for employer liability, [196] regardless of the status of the harasser. [197] Other theories of employer liability — automatic liability (for harassment by proxies and alter egos) and vicarious liability (for harassment by supervisors) — are additional bases for employer liability that supplement [198] and do not replace the negligence standard. [199]
If the complainant challenges harassment by one or more supervisors and one or more coworkers or non-employees and the harassment is part of the same hostile work environment claim, [200] separate analyses of employer liability should be conducted in accordance with each harasser’s classification (e.g., proxy, supervisor, coworker). [201]
B. Liability Standard for a Hostile Work Environment Depends on the Role of the Harasser
The liability standard for a hostile work environment depends on whether the harasser is a:
- Proxy or alter ego of the employer;
- Supervisor; or
- Non-supervisory employee, coworker, or non-employee.
The applicable standard of liability depends on the level and kind of authority that the employer afforded the harasser to act on its behalf.
1. Proxy or Alter Ego of the Employer
An individual is considered an alter ego or proxy of the employer if the individual possesses such high rank or authority that his or her actions can be said to speak for the employer. [202] Individuals who might be considered proxies include sole proprietors and other owners; partners; corporate officers; and high-level managers whose authority or influence within the organization is such that their actions could be said to “speak for” the employer. [203] By contrast, a supervisor does not qualify as the employer’s alter ego merely because the supervisor exercises significant control over the complaining employee. [204]
2. Supervisor
In the context of employer liability for a hostile work environment, an employee is considered a “supervisor” if the individual is “empowered by the employer to take tangible employment actions against the victim.” [205]
A “tangible employment action” means a “significant change in employment status” that requires an “official act” of the employer. [206] Examples of tangible employment actions include hiring and firing, failure to promote, demotion, reassignment with significantly different responsibilities, a compensation decision, and a decision causing a significant change in benefits. [207] In some cases, a decision may constitute a tangible employment action even though it does not have immediate direct economic consequences, such as a change in job duties that limits the affected individual’s eligibility for promotion [208] or a demotion with a substantial reduction in job responsibilities but without a loss in pay. [209]
Even if an individual is not the final decision maker as to tangible employment actions affecting the complainant, the individual would still be considered a supervisor if the individual has the “power to recommend or otherwise substantially influence tangible employment actions.” [210]
Finally, an employee who does not have actual authority to take a tangible employment action with respect to the complainant can still be considered a supervisor if, based on the employer’s actions, the harassed employee reasonably believes that the harasser has such power. [211] The complainant might have such a reasonable belief where, for example, the chain of command is unclear or the harasser has broad delegated powers. [212] In these circumstances, the harasser is said to have “apparent authority.” [213]
3. Non-Supervisory Employees, Coworkers, and Non-employees
Federal EEO laws protect employees against unlawful harassment by other employees who do not qualify as a proxy/alter ego or a “supervisor,” i.e., other employees without actual or apparent authority to take tangible employment actions against the employee(s) subjected to the harassment. These other employees may include coworkers and shift leads or other workers with limited authority over the complainant. Employees are further protected against unlawful harassment by non-employees, such as independent contractors, [214] customers, [215] students, [216] hospital patients and nursing home residents, [217] and clients of the employer. [218]
C. Applying the Appropriate Standard of Liability in a Hostile Work Environment Case
Once the status of the harasser is determined, the appropriate standard can be applied to assess employer liability for a hostile work environment.
1. Alter Ego or Proxy - Automatic Liability
If the harasser is an alter ego or proxy of the employer, the employer is automatically liable for unlawful harassment and has no defense. [219] Thus, a finding that the harasser is an alter ego or proxy is the end of the liability analysis. This is true whether or not the harassment includes a tangible employment action.
Example 26: Harasser Was Employer’s Alter Ego. Gina, who is Peruvian-American, alleges that she was harassed because of her national origin by the company Vice President, Walter. The investigation reveals that Walter was the only corporate Vice President in the organization, answering only to the company’s President, and he exercised managerial responsibility over the Respondent’s operations. Based on these facts, given Walter’s high rank within the company and his significant control over the company’s operations, the investigator concludes that Walter was the Respondent’s alter ego, subjecting it to automatic liability for a hostile work environment resulting from his harassment.
2. Supervisor - Vicarious Liability
An employer is vicariously liable for a hostile work environment created by a supervisor. [220] Under this standard, liability for the supervisor’s harassment is attributed to the employer. Unlike situations where the harasser is an alter ego or proxy of the employer, an employer may have an affirmative defense, known as the Faragher-Ellerth defense, when the harasser is a supervisor. The availability of Faragher-Ellerth defense is dependent on whether the supervisor took a tangible employment action against the complainant as part of the hostile work environment. If the Faragher-Ellerth defense is available, the employer bears the burden of proof with respect to the elements of that defense.
If the supervisor took a tangible employment action as part of the hostile work environment, then the employer is automatically liable for the hostile work environment and does not have a defense.
If the supervisor did not take a tangible employment action, then the employer can raise the Faragher-Ellerth affirmative defense to vicarious liability by proving both of the following:
- The employer acted reasonably to prevent and promptly correct harassment; and
- The complaining employee unreasonably failed to use the employer’s complaint procedure or to take other steps to avoid or minimize harm from the harassment.
a. Hostile Work Environment Includes a Tangible Employment Action: No Employer Defense
An employer is always liable if a supervisor’s harassment creates a hostile work environment that includes a tangible employment action. [221] As previously noted, agency principles generally govern employer liability for a hostile work environment. The Supreme Court stated in Ellerth that “[w]hen a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation.” [222] Therefore, when a hostile work environment includes a tangible employment action, the “action taken by the supervisor becomes for Title VII purposes the act of the employer,” [223] and the employer is liable. [224]
The tangible employment action may occur at any time during the course of the hostile work environment, and need not occur at the end of employment or serve as the culmination of the harassing conduct. [225] For example, if a supervisor subjects an employee to a hostile work environment by making frequent sexual comments and denying pay increases because the employee rejects the sexual advances, [226] then the employer is liable for the hostile work environment created by the supervisor and there is no defense. [227] This is true even though the supervisor’s tangible employment action, here denial of pay increases, did not occur at the end of the employee’s employment.
An unfulfilled threat to take a tangible employment action does not itself constitute a tangible employment action, but it may contribute to a hostile work environment. [228] By contrast, fulfilling a threat of a tangible employment action because a complainant rejects sexual demands (e.g., denying a promotion) constitutes a tangible employment action. Finally, fulfilling a promise to provide a benefit because the complainant submits to sexual demands (e.g., granting a promotion or not terminating the complainant after the complainant submits to sexual demands) constitutes a tangible employment action. [229]
b. Hostile Work Environment Without a Tangible Employment Action: Establishing the Faragher-Ellerth Affirmative Defense
If harassment by a supervisor creates a hostile work environment that did not include a tangible employment action, the employer can raise an affirmative defense to liability or damages. In Faragher and Ellerth, the Supreme Court explained that the defense requires the employer to prove that:
- the employer exercised reasonable care to prevent and correct promptly any harassment; and
- the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to take other steps to avoid harm from the harassment. [230]
In establishing this affirmative defense, the Supreme Court sought “to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees.” [231] The Court held that this carefully balanced defense contains “two necessary elements:” [232] (1) the employer’s exercise of reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the employee’s unreasonable failure to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [233] Thus, in circumstances in which an employer fails to establish one or both prongs of the affirmative defense, the employer will be liable for the harassment. For example, if the employer is able to show that it exercised reasonable care but cannot show that the employee unreasonably failed to take advantage of preventive or corrective opportunities, the employer will not be able to establish the defense.
Example 27: Employer Fails to Establish Affirmative Defense. Chidi files a charge alleging that he was subjected to national origin harassment by his supervisor, Ang. The employer does not have a written anti-harassment policy and does not offer comprehensive anti-harassment training. Instead, employees are told to “follow the chain of command” if they have any complaints, which would require Chidi to report to Ang. The evidence shows that during meetings with Chidi and his coworkers, Ang repeatedly directed egregious national origin-based epithets at Chidi, and that Ang’s conduct was sufficient to create a hostile work environment. Chidi reported Ang’s harassment to his manager (who was also Ang’s supervisor) on at least two separate occasions. Each time, the manager simply responded, “That’s just Ang—don’t take it seriously.” Based on these facts, the investigator concludes that the employer cannot establish either prong of the affirmative defense. The employer did not exercise reasonable care to prevent or to promptly correct the harassment. Further, the employer cannot establish that Chidi unreasonably failed to take advantage of the employer’s complaint process. Based on these facts, the employer is liable for supervisor harassment under Title VII.
Example 28: Employer Avoids Liability by Establishing Affirmative Defense. Kit files a charge alleging that they were subjected to a hostile work environment by their supervisor because of race. The supervisor’s harassment was not severe at first but grew progressively worse over a period of several months. The employer had an effective anti-harassment policy and procedure, which it prominently displayed on its employee website and provided to all employees through a variety of other means. In addition, the employer was not aware of any harassment by this supervisor in the past. [234] Kit never complained to the employer about the harassment or took any other steps to avoid harm from the harassment. The employer learned of the supervisor’s conduct from Kit’s coworker, who observed the harassment. After learning about it, the employer took immediate corrective action that stopped the harassment. Based on these facts, the employer is not liable for the supervisor’s harassment of Kit, because the employer had an effective policy and procedure and took prompt corrective action upon receiving notice of the harassment and Kit could have used the effective procedure offered by the employer or taken other appropriate steps to avoid further harm from the harassment, but failed to do so.
i. First Prong of the Affirmative Defense: Employer’s Duty of Reasonable Care
The first prong of the affirmative defense requires the employer to show that it exercised reasonable care both to prevent harassment and to correct harassment. More specifically, an employer must show both that it took reasonable steps to prevent harassment in general, as discussed immediately below, and that it took reasonable steps to prevent and to correct the specific harassment raised by a particular complainant. Because the questions of whether the employer acted reasonably to prevent and to correct the specific harassment alleged by the complainant also arise when analyzing employer liability for non-supervisor harassment, those issues are discussed in detail at § IV.C.3.a. (addressing unreasonable failure to prevent harassment) and § IV.C.3.b. (addressing unreasonable failure to correct harassment). The principles discussed in those sections also apply when determining whether the employer has shown under the first prong of the affirmative defense that it acted reasonably to prevent and to correct the harassment alleged by the complainant.
Title VII does not specify particular steps an employer must take to establish that it exercised reasonable care to prevent and correct harassment; instead, as discussed below, the employer will satisfy its obligations if, as a whole, its efforts are reasonable. [235] In assessing whether the employer has taken adequate steps, the inquiry typically begins by identifying the policies and practices an employer has instituted to prevent harassment and to respond to complaints of harassment. These steps usually consist of promulgating a policy against harassment, establishing a process for addressing harassment complaints, providing training to ensure employees understand their rights and responsibilities, and monitoring the workplace to ensure adherence to the employer’s policy. [236]
For an anti-harassment policy to be effective, it should generally have the following features, at a minimum:
- the policy defines what conduct is prohibited;
- the policy is widely disseminated; [237]
- the policy is comprehensible to workers, [238] including those who the employer has reason to believe might have barriers to comprehension, such as employees with limited literacy skills or limited proficiency in English; [239]
- the policy requires that supervisors report harassment when they are aware of it; [240]
- the policy offers multiple avenues for reporting harassment, thereby, allowing employees to contact someone other than their harassers; [241]
- the policy clearly identifies accessible [242] points of contact to whom reports of harassment should be made and includes contact information; [243] and
- the policy explains the employer’s complaint process, including the process’s anti-retaliation and confidentiality protections.
For a complaint process to be effective, it should generally have the following features, at a minimum:
- the process provides for prompt and effective investigations and corrective action; [244]
- the process provides adequate confidentiality protections; [245] and
- the process provides adequate anti-retaliation protections. [246]
For training to be effective, it should generally have the following features, at a minimum: [247]
- It explains the employer’s anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections;
- It describes and provides examples of prohibited harassment, as well as conduct that, if left unchecked, might rise to the level of prohibited harassment;
- It provides information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited;
- It provides supervisors and managers information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of;
- It is tailored to the workplace and workforce;
- It is provided on a regular basis to all employees; and
- It is provided in a clear, easy-to-understand style and format.
However, even the best anti-harassment policy, complaint procedure, and training will not necessarily establish that the employer has exercised reasonable care to prevent harassment – the employer must also implement these elements effectively. [248] Thus, evidence that an employer has a comprehensive anti-harassment policy and complaint procedure will be insufficient standing alone to establish the first prong of the defense if the employer fails to implement those procedures or to appropriately train employees. [249] Similarly, the first prong of the defense would not be established if evidence shows that the employer adopted or administered the policy in bad faith or that the policy was otherwise defective or dysfunctional. [250] Considerations that may be relevant to determining whether an employer unreasonably failed to prevent harassment are discussed in detail at § IV.C.3.a, below.
Likewise, the existence of an adequate anti-harassment policy and complaint procedure, and training is not dispositive on the issue of whether an employer exercised reasonable care to correct harassing behavior of which it knew or should have known. [251] For example, if a supervisor witnesses harassment by a subordinate, the supervisor’s knowledge of the harassment is imputed to the employer, and the duty to take corrective action will be triggered. [252] If the employer fails to exercise reasonable care to correct the harassing behavior, it will be unable to satisfy prong one of the Faragher-Ellerth defense, regardless of any policy, complaint procedure, or training. The duty to exercise reasonable care to correct harassment for which an employer had notice is discussed in detail at § IV.C.3.b., below.
Example 29: Employer Liable Because It Failed to Exercise Reasonable Care in Responding to Harassment – Employee Reported to a Supervisor. Aisha, who works as a cashier in a fast-food restaurant, files a charge alleging that she was sexually harassed by one of her supervisors, Pax, an assistant manager. The investigation reveals that Aisha initially responded to Pax’s sexual advances and other sexual conduct by telling him that she was not interested and that his conduct made her uncomfortable. Pax’s conduct persisted, however, so Aisha spoke to the restaurant’s other assistant manager, Mallory, who, like Pax, was designated as Aisha’s direct supervisor. Respondent has an anti-harassment policy, which is distributed to all employees. The policy states that all supervisors are required to report and address potentially harassing conduct when the supervisor becomes aware of such conduct. Mallory, however, did not report Pax’s conduct or take any action because she felt Aisha was being overly sensitive. Pax continued to sexually harass Aisha, and a few weeks after speaking with Mallory, Aisha contacted the Human Resources Director. The following day, Respondent placed Pax on paid administrative leave, and a week later, after concluding its investigation, Respondent terminated Pax. Respondent contends that it took reasonable corrective action by promptly responding to Aisha’s complaint to Human Resources. Because Mallory was one of Aisha’s supervisors, and was therefore responsible for reporting and addressing potential harassment, Respondent could not establish the affirmative defense, having failed to act reasonably to address the alleged harassment after Aisha spoke with Mallory.
Example 30: Employer Liable Because It Failed to Exercise Reasonable Care in Responding to Harassment –Supervisor Witnessed Harassment. Respondent, a large department store, has an anti-harassment policy. The policy is, on its face, effective: for example, it describes harassment; provides multiple avenues for reporting harassment, including a 1-800 number operated by a third-party vendor; and contains an anti-retaliation provision. The policy is distributed to all employees at the time of their hire and can be accessed any time via computer terminals that all employees can use. Further, Respondent ensures that all employees receive annual anti-harassment training that reminds employees of the policy, including their rights and obligations under the policy.
Claudia works as an overnight stocker in Respondent’s housewares department. Claudia is directly supervised by Dustin, the housewares department manager. On an almost nightly basis, Dustin likes to “play a game” in which he hides between store aisles and jumps out with his penis exposed to Claudia. Ravi, who manages Respondent’s produce section, has witnessed Dustin expose his penis to Claudia on a few occasions. Ravi once admonished Dustin for being a “child” and told him “acting like that will lead to you getting fired,” but took no further action to address the harassment. Claudia was embarrassed by the harassment but was afraid that complaining would jeopardize her job, so she never reported the harassment, either to Respondent or the 1-800 number. Respondent cannot establish the affirmative defense. While Respondent appears to have acted reasonably in its efforts to prevent harassment by adopting a comprehensive and effective anti-harassment policy and providing training, it did not act reasonably to correct harassment that it knew about through Ravi’s direct observation.
ii. Second Prong of the Affirmative Defense: Employee’s Failure to Take Advantage of Preventive or Corrective Opportunities
The second prong of the Faragher-Ellerth affirmative defense requires the employer to show that the complainant “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” [253] An employer that has exercised reasonable care will not be liable if the complainant could have avoided all harm from unlawful harassment but unreasonably failed to do so. [254] Moreover, if the employee unreasonably delayed complaining and an earlier complaint could have avoided some but not all of the harm from the harassment, then the employer might be able to use the affirmative defense to reduce damages, even if it could not eliminate liability altogether. [255]
Example 31: Employer Limits Damages by Establishing Affirmative Defense. Nina files a charge alleging that she was subjected to national origin harassment by her supervisor, Samantha. The evidence shows that the harassment began when Samantha used egregious epithets to refer to Nina’s national origin during an informal meeting with Nina’s coworkers, conduct that was sufficient standing alone to create a hostile work environment. Although Samantha’s harassment continues, Nina does not complain until four months later, when she accepts a position with another employer. Nina states she did not complain during her employment because she did not want to “rock the boat” or cause Samantha to be fired. The investigator concludes that the employer has established both elements of the affirmative defense with respect to the continuing harassment after the meeting because Nina could have avoided this harm by complaining promptly. However, the employer is liable for the hostile work environment created by Samantha’s initial use of the egregious epithets because Nina could not have avoided this harm by complaining earlier.
Proof that the employee unreasonably failed to use the employer’s complaint procedure will normally establish the second prong of the affirmative defense. [256] In some circumstances, however, there will be evidence of a reasonable explanation for an employee’s delay in complaining or failure to utilize the employer’s complaint process. [257] In addition, there will be instances when an employee’s use of mechanisms other than the employer’s official complaint process will be sufficient to demonstrate that the employee took reasonable steps to avoid harm from the harassment.
The reasonableness of an employee’s decision not to use the employer’s complaint procedure, or timing in doing so, depends on the particular circumstances and information available to the employee at that time. [258] An employee should not necessarily be expected to complain to management immediately after the first or second incident of relatively minor harassment. An employee might reasonably ignore a small number of minor incidents, hoping that the harassment will stop without resorting to the complaint process. [259] The employee also may choose to tell the harasser directly to stop the harassment and then wait to see if the harasser stops before complaining to management. If the harassment persists or worsens, however, then further delay in complaining might be unreasonable.
Even if the employee uses the employer’s official complaint process, simply filing the complaint does not necessarily show that the employee acted reasonably in using the process. If, for example, the complainant unreasonably failed to cooperate in the investigation, the complaint would not qualify as a reasonable effort to avoid harm. [260]
a) Reasonable Delay in Complaining or in Failing to Use the Employer’s Complaint Procedure
There may be reasonable explanations for an employee’s delay in complaining or failure to utilize the employer’s complaint process. [261] For example:
- Employer-created obstacles to filing complaints: An employee’s failure to use the employer’s complaint procedure could be reasonable if that failure was based on employer-created obstacles to filing complaints. For example, if the process entailed undue expense by the employee, [262] inaccessible points of contact for making complaints, [263] or intimidating or burdensome requirements, failure to use the process could be reasonable.
- Ineffective complaint mechanism: As a general matter, an employee’s subjective belief that reporting harassment will be futile, without more, will not constitute a reasonable basis for failing to take advantage of preventive or corrective opportunities provided by an employer. [264] However, an employee’s failure to use the employer’s complaint procedure would be reasonable if that failure was based on a reasonable belief that the complaint process was ineffective. For example, an employee might have a reasonable belief that the complaint process would be ineffective if the persons designated to receive complaints were all close friends of the harasser. [265] A failure to complain also might be reasonable if the complainant was aware of instances in which the employer had failed to take appropriate corrective action in response to prior complaints filed by the complainant or by coworkers. [266]
- Risk of retaliation: A generalized fear of retaliation, standing alone, will not constitute a reasonable basis for failing to take advantage of preventive or corrective opportunities provided by an employer. [267] However, an employee’s failure to use the employer’s complaint procedure would be reasonable if the employee reasonably feared retaliation as a result of complaining about harassment. [268] An employer’s complaint procedure should provide assurances that complainants will not be subjected to retaliation. Even in the face of such assurances, however, an employee might reasonably fear retaliation in some instances. For example, if the harasser threatened the employee with reprisal for complaining, then the employee’s decision not to report or to delay reporting the harasser would likely be reasonable. [269] Similarly, an employee’s failure to complain could be reasonable if the employee or another employee had previously been subjected to retaliation for complaining about harassment. [270] By contrast, because it may not be possible for an employer to completely eliminate all unpleasantness that an employee may experience in reporting harassment, a failure to report or delay in reporting will not be considered reasonable if based merely on concerns about ordinary discomfort or embarrassment. [271]
b) Reasonable Efforts to Avoid Harm Other than by Using the Employer’s Complaint Process
Even if an employee failed to use the employer’s complaint process, the employer will not be able to establish the Faragher-Ellerth affirmative defense if the employee took other reasonable steps to avoid harm from the harassment. A promptly filed union grievance while the harassment is ongoing, for example, could qualify as a reasonable effort to avoid harm. [272] Similarly, a temporary employee who is harassed at the client’s workplace generally would be free to report the harassment to either the employment agency or the client, reasonably expecting that the entity she notified would act to correct the problem. [273]
3. Non-supervisory Employees (E.g., Coworkers) and Non-employees - Negligence [274]
An employer is liable for a hostile work environment created by non-supervisory employees or by non-employees if it was negligent because:
-
it unreasonably failed to prevent the harassment;
Although the negligence standard is principally applied in cases involving harassment by a non-supervisory employee or non-employee, it also can be applied in cases involving harassment by a supervisor or alter ego/proxy. [275]
a. Unreasonable Failure to Prevent Harassment
An employer is liable for a hostile work environment created by non-supervisory employees or non-employees where the employer was negligent by failing to act reasonably to prevent harassment from occurring. [276] Although the relevant considerations will vary from case to case, some of the considerations may include:
- Adequacy of the employer’s anti-harassment policy, complaint procedures, and training: As with the first prong of the Faragher-Ellerth affirmative defense (which only applies to harassment by a supervisor), assessing negligence on the part of an employer starts with whether the employer had an adequate anti-harassment policy, complaint procedures, and training to ensure employees understand their rights and responsibilities pursuant to the policy. [277] The elements described in § IV.C.2.b.i., above, with regard to an effective policy and complaint procedure apply here as well.
- Nature and degree of authority, if any, that the alleged harasser exercised over the complainant:[278] Employers have a heightened responsibility to protect employees against harassment by other employees whom it has “armed with authority” [279] even if the other employees are not “supervisors.” [280]
- Adequacy of the employer’s efforts to monitor the workplace, [281] such as by training supervisors and other appropriate officials on how to recognize potential harassment and by requiring them to report or address harassment that they either are aware of or reasonably should have known about.
- Adequacy of the employer’s steps to minimize known or obvious risks of harassment, such as harassment by inmates incarcerated in a maximum-security prison; [282] in workspaces that are isolated, decentralized, homogenous, or rely on customer service or client satisfaction; and against employees who are vulnerable, young, do not conform to workplace norms based on societal stereotypes, or who are assigned to complete monotonous or low-intensity tasks. [283]
b. Unreasonable Failure to Correct Harassment of Which the Employer Had Notice
Even if an employer acted reasonably to prevent harassment by coworkers or non-employees, it is still liable for a hostile work environment if it was negligent because it did not act reasonably to correct harassment about which it knew or should have known. [284]
Notice
- An employer has notice of harassment if an individual responsible for reporting or taking corrective action with respect to the harassment is aware of it or if such an individual reasonably should have known about the harassment.
Corrective Action
- Once an employer has actual or constructive notice of potential harassment, it is required to take reasonable corrective action to prevent the conduct from continuing.
i. Notice
The first element that triggers an employer’s duty to take reasonable corrective action against harassment is the employer’s notice of the harassment. [285]
An employer has actual notice of harassment if an individual responsible for reporting or taking corrective action with respect to the harassment is aware of it. [286] Thus, if harassment is observed by or reported to any individual who is responsible for reporting harassment to management, then the employer has actual notice of the harassment. [287] Likewise, if harassment is observed by or reported to an individual responsible for taking corrective action, then the employer has actual notice of the harassment. [288]
An employer also has actual notice of harassment if an employee with a general duty to respond to harassment under the employer’s anti-harassment policy, such as the EEO Director, a manager, or a supervisor who does not directly supervise either the harasser or the target of the harassment but who does have a duty to report harassment is aware of it. [289] In addition, an employer has notice if someone qualifying as the employer’s proxy or alter ego, such as an owner or high-ranking officer, has knowledge of the harassment. [290]
Example 32: Employer Had Notice of Harassment. Lawrence, a Black man in his 60s, was employed as a laborer in a distribution yard for Respondent. Lawrence alleges that he was subjected to race- and age-based harassment by coworkers and that Respondent failed to take appropriate corrective action after he complained. Respondent contends that it was never notified of the alleged harassment until after Lawrence had been fired for misconduct, and he filed an EEOC charge. The investigation reveals that Lawrence complained to the “yard lead,” who was responsible for instructing and organizing teams of yard workers. According to Respondent’s policy, the yard lead was expected to report problems to the yard manager, who had authority to take disciplinary action against employees. Based on this evidence, the investigator concludes that the yard lead was responsible for referring Lawrence’s complaints to an appropriate official authorized to take corrective action. Therefore, based on these facts, Respondent had actual notice of the alleged harassment. [291]
A complaint can be made by a third party, such as a friend, relative, or coworker, and need not be made by the target of the harassment. For example, if an employee witnesses a coworker being subjected to racial epithets by a person at work, and that employee reports it to the appropriate personnel in Human Resources, the employer is on notice of potentially harassing behavior. Similarly, even if no one complains, the employer still has notice if someone responsible for correcting or reporting harassment becomes aware of the harassment, such as by personally witnessing it. [292]
The employer’s duty to take corrective action is triggered if the notice it has received is sufficient to make a reasonable employer aware of the possibility that an individual is being subjected to harassment on a protected basis. While no “magic words” are required to initiate a harassment complaint, the complaint (or other vehicle for notice) must identify potentially unlawful conduct in some way. [293] Therefore, a complaint simply that a coworker’s conduct was “rude” and “aggravating” might not provide sufficient notice depending on the circumstances. Conversely, evidence that an employee had engaged in “unwanted touching” of another employee likely would be sufficient to alert the employer of a reasonable probability that the second employee was being sexually harassed and that it should investigate the conduct and take corrective action. [294]
Example 33: Employer Had Notice of Harassment. Respondent contends that it did not have notice of Jim’s alleged sexual harassment of Susan, one of his coworkers. The investigation reveals, however, that Susan requested a schedule change when she was scheduled to work alone with Jim, and that Susan’s coworkers told her supervisor, Stacey, that Susan wanted to avoid working with Jim. Also, Jim told Stacey that he may have “done something or said something that [he] should not have to Susan.” When Stacey asked Susan about working with Jim, she became “teary and red” and said, “I can’t talk about it.” Stacey responded by saying, “That’s good because I don’t want to know what happened.” In addition, Respondent was aware that Jim had engaged in sexual harassment of female employees in the past. Under the circumstances, Stacey had enough information to suspect that Jim was sexually harassing Susan. As Susan’s supervisor, she had the responsibility to take corrective action, if she had the authority, or to notify another official who did have the authority. [295]
Although an employer cannot be found liable for conduct that does not violate federal EEO law, the duty to take corrective action may be triggered by notice of harassing conduct that has not yet risen to the level of a hostile work environment, but may reasonably be expected to lead to a hostile work environment if appropriate corrective action is not taken. [296]
Notice of harassing conduct directed at one employee might serve as notice not only of the harasser’s potential for further harassment of the same employee but also of the harasser’s potential to harass others. Factors in assessing the relevance of the employer’s knowledge of prior harassment can include the “extent and seriousness of the earlier harassment and the similarity and nearness in time to the later harassment.” [297]
An employer has constructive notice of harassing conduct if, under the circumstances presented, a reasonable employer should know about the conduct. [298] Most commonly, an employer is deemed to have constructive notice if harassing conduct is severe, widespread, or pervasive so that individuals responsible for taking action with respect to the harassment reasonably should know about it. [299] An employer also may be deemed to have constructive notice of harassment if it did not have reasonable procedures for reporting harassment. [300]
Example 34: Employer Had Constructive Notice of Harassment. Joe, who is Mexican-American, works as an Automotive Parts Salesman for a car dealership. Joe’s job requires him to frequently enter Respondent’s Service Department. At least once per day while in the Service Department, the Service Foreman, Ronald, yells across the room, calling Joe “Wetback,” “Spic,” and “Mexican Mother F--.” Ronald is supervised by Aseel, the Service Department Manager. Because Ronald is Joe’s coworker, the first question is whether the employer knew or should have known of the harassment. During the EEOC’s investigation of Joe’s harassment complaint, coworkers testified that Ronald’s name-calling permeated the Service Department, even after Respondent provided anti-harassment training to all of the employees working at Joe’s location. Multiple coworkers testified that the harassment occurred in front of them, and it seemed like Ronald enjoyed having an audience. Based on this evidence, the investigator concludes that Respondent had constructive notice of the hostile work environment because Service Manager Aseel knew or should have known about Ronald’s conduct. [301]
ii. Reasonable Corrective Action
Once an employer has notice of potentially harassing conduct, it is responsible for taking reasonable corrective action to prevent the conduct from continuing. This includes conducting a prompt and adequate investigation and taking appropriate action based on the findings of that investigation.
a) Prompt and Adequate Investigation
An investigation is prompt [302] if it is conducted reasonably soon after the complaint is filed or the employer otherwise has notice of possible harassment. For instance, an employer that opens an investigation into a complaint one day after it is filed clearly has acted promptly. [303] An employer that waits two months to open an investigation, on the other hand, can be presumed, absent other facts, not to have acted promptly. [304] In other instances, what is “reasonably soon” is fact-sensitive and depends on such considerations as the nature and severity of the alleged harassment and the reasons for delay. [305] For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly. [306]
An investigation is adequate if it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.” [307] The investigation need not entail a trial-type investigation, but it should be conducted by an impartial party and seek information about the conduct from all parties involved. The alleged harasser therefore should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. If there are conflicting versions of relevant events, it may be necessary for the employer to make credibility assessments so that it can determine whether the alleged harassment in fact occurred. [308] Accordingly, whoever conducts the investigation should be well-trained in the skills required for interviewing witnesses and evaluating credibility.
Example 35: Employer Failed to Conduct Adequate Investigation. George, a construction worker, repeatedly complains to the superintendent that he is being harassed because of his disability by Phil, a coworker. After about two weeks, the superintendent asks a friend of his to conduct an investigation, even though this individual is not familiar with EEO law or the harassment policy and has no experience conducting harassment investigations. Another week later, the investigator contacts George and Phil and meets with them individually for about 10 minutes each. During the meeting with George, the investigator never asks him any questions and does not take any notes. Without first consulting with the employer’s EEO officer, the investigator issues a single-page memorandum concluding that there is no basis for finding that George was harassed without further explanation. Based on these facts, Respondent has not conducted an adequate investigation. [309]
Upon completing its investigation, the employer should inform the complainant and alleged harasser of its determination and any corrective action that it will be taking, subject to applicable privacy laws. [310]
Employers should retain records of all harassment complaints and investigations. [311] These records can help employers identify patterns of harassment, which can be useful for improving preventive measures, including training. These records also can be relevant to credibility assessments and disciplinary measures.
In some cases, it may be necessary, given the seriousness of the alleged harassment, for the employer to take intermediate steps to address the situation while it investigates the complaint. [312] Examples of such measures include making scheduling changes to avoid contact between the parties; temporarily transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. As a rule, an employer should make every reasonable effort to minimize the burden or negative consequences to an employee who complains of harassment, pending the employer’s investigation.
Corrective action that leaves the complainant worse off also could constitute unlawful retaliation if motivated by retaliatory bias. [313] The employer should take measures to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.
b) Appropriate Corrective Action
To avoid liability, an employer must take corrective action that is “reasonably calculated to prevent further harassment” under the particular circumstances at that time. [314] Corrective action should be designed to stop the harassment and prevent it from continuing. [315] The reasonableness of the employer’s corrective action depends on the particular facts and circumstances at the time when the action is taken. [316]
Considerations that will be relevant in evaluating the reasonableness of an employer’s corrective action include the following:
- Proportionality of the corrective action: Corrective action should be proportionate to the seriousness of the offense. [317] If the harassment was minor, such as “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. In other circumstances, separating the harasser and the complainant may be adequate. On the other hand, if the harassment was severe or persistent despite prior corrective action, then suspension or discharge of the harasser may be necessary. [318]
- Authority granted harasser: Employers have a heightened responsibility to protect employees against abuse of official power. To that end, employers must take steps to prevent employees who have been granted authority over others from using it to further harassment, even if that authority is insufficient to establish vicarious liability. [319] Thus, the nature and degree of the harasser’s authority should be considered in evaluating the adequacy of corrective action. [320]
- Whether harassment stops: After taking corrective action, an employer should monitor the situation to ensure that the harassment has stopped. Whether the harassment stopped is a key factor indicating whether the corrective action was appropriate. However, the continuation of harassment despite an employer’s corrective action does not necessarily mean that the corrective action was inadequate. [321] For example, if an employer takes appropriate proportionate corrective action against a first-time offender who engaged in mildly offensive sexual conduct, yet the same employee subsequently engages in further harassment, then the employer may not be liable if it also responded appropriately to the subsequent misconduct by taking further corrective action appropriate to the pattern of harassment. On the other hand, an employer who takes no action in response to a complaint of harassment may not be shielded from liability by the fact that the harassment “fortuitously stops.” [322]
- Effect on complainant: An employee who in good faith complains of harassment should ideally face no burden because of the corrective action the employer takes to stop harassment or prevent it from occurring; for example, corrective action generally should not involve involuntarily transferring the complaining employee while leaving the alleged harasser in place. [323] However, the employer may place some burdens on the complaining employee as part of the corrective action it imposes on the harasser if it makes every reasonable effort to minimize those burdens or adverse consequences. [324]
- Options available to the employer: [325] Although employers are responsible for addressing harassment by anyone in the workplace, employers may have fewer options for influencing the conduct of some non-employees, thereby limiting the remedial options available, [326] or may have limited control over the work environment, such as a joint employer that assigns employees to work at client sites. Employers also may have less ability to control conduct arising outside the workplace that can contribute to a hostile work environment. Employers’ corrective actions are to be assessed based on how they deploy the “arsenal of incentives and sanctions” they have available to address harassment. [327]
- The extent to which the harassment was substantiated: Where an employer conducts a thorough investigation but is unable to determine with sufficient confidence that the alleged harassment occurred, its response may be more limited. An employer is not required to impose discipline if, after a thorough investigation, it concludes that the alleged harassment did not occur, or if it has inconclusive findings. [328] Nonetheless, if the employer is unable to determine whether the alleged harassment occurred, the employer may wish to consider preventive measures, such as counseling, training, monitoring, or issuing general workforce reminders about the employer’s anti-harassment policy. [329]Example 36: Employer failed to take reasonable corrective action. Malak, a server at a sports bar, is visibly pregnant. Every Sunday, Kevin and Troy spend the afternoon at the bar cheering on their favorite football team, and they usually sit in Malak’s section. They repeatedly ask if they can rub her belly “for luck” before games, and berate her when she refuses, calling her a “mean mama.” They also frequently make beeping sounds and yell, “Careful! Wide load!” when Malak serves other tables. In addition, they ask if she plans to breastfeed and offer to “help out with practice sessions.” Sven, a manager, overhears Kevin and Troy, laughs, and says halfheartedly, “C’mon guys, give her a break.” They ignore him and continue to comment about Malak’s pregnancy. Malak complains to Sven, who throws up his hands and says, “Hey, I did what I could. What else do you want me to do? If I barred everyone who made a few dumb comments when they were drunk, we’d have no customers at all.” Based on these facts, the employer has failed to take reasonable corrective action to address Kevin and Troy’s pregnancy-based harassment of Malak. Example 37: Employer took reasonable corrective action. Same facts as above, but instead of laughing and making a halfhearted request that Kevin and Troy stop harassing Malak, Sven tells Kevin and Troy that they must stop making comments about Malak’s pregnancy and warns them that they will be barred from the establishment if they persist. Sven tells Malak to notify him or another manager immediately if the comments continue. Sven also asks Malak if she would like Kevin and Troy reseated in another section, but she declines, and he asks other managers to keep an eye on Kevin and Troy to make sure the two men do not continue to harass Malak. Three weeks later, Kevin and Troy resume making offensive pregnancy-related comments to Malak. Before Malak can notify Sven, another manager does so, and Sven promptly gives Kevin and Troy their check, directs them to pay, and notifies them they are no longer welcome at the bar. Based on these facts, the employer has taken adequate corrective action to address Kevin and Troy’s pregnancy-based harassment of Malak.
- Special consideration when balancing anti-harassment and accommodation obligations with respect to religious expression: Title VII requires that employers accommodate employees’ sincerely held religious beliefs, practices, and observances in the absence of undue hardship. Employers, however, also have a duty to protect workers against religiously motivated harassment. Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment. [330] As with other forms of harassment, an employer should take corrective action before the conduct becomes sufficiently severe or pervasive to create a hostile work environment. [331]
Corrective action in response to a harassment complaint must be taken without regard to the complainant’s protected characteristics. Thus, employers should follow consistent processes for all harassment claims, to determine what corrective action, if any, is appropriate. For example, it would violate Title VII if an employer assumed that a male employee accused of sexual harassment by a female coworker had engaged in the alleged conduct based on stereotypes about the “propensity of men to harass sexually their female colleagues.” [332]
In some circumstances, an employee may report harassment but ask that the employer keep the matter confidential and take no action. Although it may be reasonable in some circumstances to honor the employee’s request when the conduct is relatively mild, it may not be reasonable to do so, for instance, if it appears likely that the harassment was severe [333] or if employees other than the complainant are vulnerable. [334] One mechanism to help minimize such conflicts would be for the employer to set up an informational phone line or website that allows employees to ask questions or share concerns about harassment anonymously. [335] In such circumstances, the employer also may be required to take general corrective action to reduce the likelihood of harassment in the future, such as recirculating its anti-harassment policy.
If an individual has been assigned by a temporary employment agency to work for a client, then both the temporary agency and the client may jointly employ the individual during the period when the individual works for the client. [336] If a worker is jointly employed by two or more employers, then each of the worker’s employers may be responsible for taking corrective action to address any alleged harassment about which it has notice. [337] An employer has the same responsibility to prevent and correct harassment of temporary employees as harassment of permanent employees. [338] Therefore, under such circumstances, if the worker complains about harassment to the client and temporary employment agency, then both entities would be responsible for taking corrective action. [339] Joint employers are not required to take duplicative corrective action, but each has an obligation to respond to potential harassment, either independently or in cooperation. Once the employee complains to either entity, that entity is responsible to take reasonable steps within its control to address the harassment and to work with the other entity, if necessary, to resolve the discrimination. [340]
As with any employer, a temporary employment agency is responsible for taking reasonable corrective action within its own control. This is true regardless of whether the temporary employment agency’s client is also a joint employer. Corrective action may include, but is not limited to: ensuring that the client is aware of the alleged harassment; insisting that the client conduct an investigation and take appropriate corrective measures on its own; working with the client to jointly conduct an investigation and/or identify appropriate corrective measures; following up and monitoring to ensure that corrective measures have been taken; and providing the worker with the opportunity to take another job assignment at the same pay rate, if such an assignment is available and the worker chooses to do so.
Example 38: Temporary Agency Takes Adequate Corrective Action, But Client Does Not. Jamila, an Arab American Muslim woman, is assigned by a temporary agency to work for a technology company on a software development project. The evidence establishes that the temporary agency and technology company are joint employers of Jamila. Soon after Jamila starts working, Eddie, one of her coworkers, begins making frequent comments about her religion and ethnicity. For example, Eddie says that Middle Eastern Muslims “prefer to solve problems with their bombs, rather than their brains” and that they “pray for America’s destruction.” He also says that “the Middle East’s number one export is terrorism,” and recommends that Jamila’s work be reviewed carefully “to make sure she’s not embedding bugs on behalf of terrorists.” Jamila tells Eddie to stop, but he refuses. Jamila complains to the temporary agency, which promptly notifies the technology company and requests that it take corrective action. The technology company refuses to take any action, explaining that Eddie is one of its most experienced programmers, that his assistance is crucial to the project’s satisfactory completion, and that his reputation in the tech industry has attracted numerous prestigious clients to the company. The temporary agency promptly reassigns Jamila to a different client at the same pay rate. [341] The temporary agency also declines to assign other workers to the technology company until the company takes appropriate corrective action to address Eddie’s conduct. Based on these facts, the temporary agency took appropriate corrective action as to Jamila, while the technology company did not.
V. Systemic Harassment
A. Harassment Affecting Multiple Complainants
Like other forms of discrimination, harassment can be systemic, subjecting multiple individuals to a similar form of discrimination. If harassment is systemic, then the harassing conduct could subject all the employees of a protected group to the same circumstances. For example, evidence might show that the Black employees working on a particular shift were subjected to, or otherwise knew about, the same racial epithets, racial imagery, and other offensive race-based conduct. [342] In such a situation, evidence of widespread race-based harassment could be used to establish that each Black employee working on that shift was individually subjected to an objectively hostile work environment.
Example 39: Same Evidence of Racial Harassment Establishes Objectively Hostile Work Environment for Multiple Employees. Charging Parties (CPs), five Black correctional officers, allege that they were subjected to racial harassment. CPs, who were the only Black officers on their shift, alleged that they experienced demoralizing racial treatment and jokes, including aggressive treatment by dog handlers stationed at the entrance and racial references and epithets, such as the n-word, “back of the bus,” and “the hood.” Much of the conduct occurred in a communal setting, such as the cafeteria, in which supervisors participated or laughed at the conduct without objecting. The evidence shows that this conduct occurred regularly, up to several times a week during the approximately one-year period before CPs filed EEOC charges, despite CPs’ repeated objections. Although none of the CPs were personally subjected to every harassing incident, the harassers treated them as a cohesive group, and each became aware of harassment experienced by the others. Based on these facts, the investigator concludes that each of the CPs was subjected to an objectively hostile work environment based on race. [343]
B. Pattern-or-Practice Claims
In some situations involving systemic harassment, the evidence may establish that the employer engaged in a “pattern or practice” of discrimination, meaning that the employer’s “standard operating procedure” was to tolerate harassment creating a hostile work environment. [344] This inquiry focuses on the “landscape of the total work environment, rather than the subjective experiences of each individual claimant” [345] – in other words, whether the work environment, as a whole, was hostile. [346] For instance, in one case, the court concluded that evidence of widespread abuse, including physical assault, threats of deportation, denial of medical care, and limiting contact with the “outside world,” was sufficient to establish that Thai nationals employed on the defendant’s farms were subjected to a hostile work environment. [347] In another case, the EEOC obtained a $240 million jury verdict on behalf of a group of individuals with intellectual disabilities who had been verbally and physically abused, as well as financially exploited. Verbal abuses included frequently referring to the employees as “retarded,” “dumb ass,” and “stupid.” [348]
To avoid liability in a pattern-or-practice case, the employer must adopt a systemic remedy, rather than only address harassment of particular individuals. Moreover, if there have been frequent individual incidents of harassment, then the employer must take steps to determine whether that conduct reflects the existence of a wider problem requiring a systemic response, such as developing comprehensive company-wide procedures. [349]
Example 40: Evidence of Sexual Harassment Establishes Pattern-or-Practice Violation. Zoe alleges that she has been subjected to ongoing sexual harassment at Respondent’s soap manufacturing plant in City. The investigation reveals that female employees throughout the City plant have been frequently subjected to physically invasive conduct by male coworkers, including the touching of women’s breasts and buttocks; that women have been targeted by repeated sexual comments and conduct; and that there are open displays of sexually offensive materials throughout the plant, including pornographic magazines and calendars. The investigation further reveals that Respondent either knew or should have known about the widespread sexual harassment. In particular, much of the harassment occurred openly in public places, such as the display of pornography, and many incidents, such as sexual comments, occurred in the presence of supervisors who were required by Respondent’s anti-harassment policy to report sexual harassment to the Human Resources Department. Finally, although management has taken some corrective action in isolated cases, there is no evidence that management has taken steps to determine whether the harassment is part of a systemic problem requiringappr opriate plant-wide corrective action. Based on these facts, the investigator determines that Respondent has subjected female employees at City plant to a pattern or practice of sexual harassment. [350]
