TABLE OF CONTENTS
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I. Introduction
A. Background
B. Structure of this Guidance
II. Covered Bases and Causation
A. Covered Bases
1. Race
2. Color
3. National Origin
4. Religion
5. Sex
a. Harassing Conduct of a Sexualized Nature or Otherwise Based on Sex
b. Pregnancy, Childbirth, or Related Medical Conditions Under Title VII
c. Sexual Orientation and Gender Identity
6. Age
7. Disability
8. Genetic Information
9. Retaliation
10. Cross-Bases Issues
B. Establishing Causation
1. Generally
2. Facially Discriminatory Conduct
3. Stereotyping
4. Context
5. Link Between Conduct That Is Not Explicitly Connected to a Protected Basis
and Facially Discriminatory Conduct
6. Timing
7. Comparative Evidence
8. Causation Issues Related to Sex-Based Harassment
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
B. Hostile Work Environment
1. Unwelcomeness
a. Conduct That Is Subjectively and Objectively Hostile Is Also
Necessarily Unwelcome
b. Derivation of Unwelcomeness Inquiry
2. Subjectively Hostile Work Environment
3. Objectively Hostile Work Environment
a. In General
b. Severity
i. In General
ii. Hostile Work Environment Based on a Single Incident of Harassment
c. Pervasiveness
d. Context
C. The Scope of Hostile Work Environment Claims
1. Conduct Must Be Sufficiently Related
2. Types of Conduct
a. Conduct That Is Not Directed at the Complainant
b. Conduct That Occurs in Work-Related Context Outside of Regular Place
of Work
c. Conduct That Occurs in a Non-Work-Related Context, But with Impact
on the Workplace
IV. Liability
A. Overview of Liability Standards in Harassment Cases
B. Liability Standard for a Hostile Work Environment Depends on the Role
of the Harasser
1. Proxy or Alter Ego of the Employer
2. Supervisor
3. Non-Supervisory Employees, Coworkers, and Non-Employees
C. Applying the Appropriate Standard of Liability in a Hostile Work Environment Case
1. Alter Ego or Proxy - Automatic Liability
2. Supervisor - Vicarious Liability
a. Hostile Work Environment Includes a Tangible Employment Action:
No Employer Defense
b. Hostile Work Environment Without a Tangible Employment Action:
Establishing the Faragher-Ellerth Affirmative Defense
i. First Prong of the Affirmative Defense: Employer&#;s Duty of Reasonable
Care
ii. Second Prong of the Affirmative Defense: Employee&#;s Failure
to Take Advantage of Preventive or Corrective Opportunities
a) Reasonable Delay in Complaining or in Failing to Use the Employer&#;s
Complaint Procedure
b) Reasonable Efforts to Avoid Harm Other than by Using
the Employer&#;s Complaint Process
3. Non-Supervisory Employees (E.g., Coworkers) and Non-Employees&#;Negligence
a. Unreasonable Failure to Prevent Unlawful Harassment
b. Unreasonable Failure to Correct Harassment of Which the Employer
Had Notice
i. Notice
ii. Reasonable Corrective Action
a) Prompt and Adequate Investigation
b) Appropriate Corrective Action
c) Assessing the Liability of Joint Employers
V. Systemic Harassment
A. Harassment Affecting Multiple Complainants
B. Pattern or Practice of Harassment
VI. Selected EEOC Harassment Resources
Addendum on Responses to Major Comments
In , the U.S. Supreme Court held in the landmark case of Meritor Savings Bank, FSB v. Vinson[1] that workplace harassment can constitute unlawful discrimination under Title VII of the Civil Rights Act of (Title VII). Decades later, harassing conduct remains a serious workplace problem. For the five fiscal years (FY) ending with FY , over one-third of the charges of employment discrimination received by the Equal Employment Opportunity Commission (&#;the Commission&#; or &#;the EEOC&#;) included an allegation of unlawful harassment based on race, sex, disability, or another statutorily protected characteristic.[2] The actual cases behind these numbers reveal that many people experience harassing conduct at work that may be unlawful.3
This Commission-approved enforcement guidance presents a legal analysis of standards for harassment and employer liability applicable to claims of harassment under the equal employment opportunity (EEO) statutes enforced by the Commission, which prohibit work-related harassment based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national origin, disability, genetic information, and age (40 or over).[4] This guidance also consolidates and supersedes several earlier EEOC guidance documents: Compliance Manual Section 615: Harassment (); Policy Guidance on Current Issues of Sexual Harassment (); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (); Enforcement Guidance on Harris v. Forklift Sys., Inc. (); and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors ().
This guidance serves as a resource for employers, employees, and practitioners; for EEOC staff and the staff of other agencies that investigate, adjudicate, or litigate harassment claims or conduct outreach on the topic of workplace harassment; and for courts deciding harassment issues. This document is not intended to be a survey of all legal principles that might be appropriate in a particular case.5 The contents of this document do not have the force and effect of law, are not meant to bind the public in any way,6 and do not obviate the need for the EEOC and its staff to consider the facts of each case and applicable legal principles when exercising their enforcement discretion. Nothing in this document should be understood to prejudge the outcome of a specific set of facts presented in a charge filed with the EEOC. In some cases, the application of the EEO statutes enforced by the EEOC may implicate other rights or requirements including those under the United States Constitution; other federal laws, such as the Religious Freedom Restoration Act (RFRA); or sections 702(a) and 703(e)(2) of Title VII.7 The EEOC will consider the implication of such rights and requirements on a case-by-case basis.
In explaining how to evaluate whether harassment violates federal EEO law, this enforcement guidance focuses on the three components of a harassment claim. Each of these must be satisfied for harassment to be unlawful under federal EEO laws.
This guidance also addresses systemic harassment and provides links to other EEOC harassment-related resources.8
Harassment must be based on an employee&#;s legally protected characteristic.
Under the first part of a harassment claim, harassment (or harassing conduct) is only covered by federal EEO laws if it is based on one (or more) of the individual&#;s characteristics that are protected by these laws. In this document, the terms &#;harassment&#; and &#;harassing conduct&#; are generally used interchangeably. The terms refer to conduct that can, but does not necessarily always, constitute or contribute to unlawful harassment, including a hostile work environment. Not all harassing conduct violates the law, even if it is because of a legally protected characteristic. As discussed throughout this guidance, whether specific harassing conduct violates the law must be assessed on a case-by-case basis.
Section II.A of this guidance identifies the legally protected characteristics covered by the federal EEO laws enforced by the EEOC.
Section II.B of this guidance explains how to determine whether harassing conduct is because of a legally protected characteristic.
Taken together, these two sections address whether conduct is based on a protected characteristic and, therefore, whether it can contribute to creating a hostile work environment. Section II does not address whether such conduct reaches the point of creating a hostile work environment. The next section of this guidance, section III, discusses how to determine whether harassing conduct rises to the level of a hostile work environment.
Title VII prohibits discrimination, including unlawful harassment, based on race. Harassment is based on a complainant&#;s race if it is because the complainant is Black, Asian, White, multiracial, or another race. Examples of harassing conduct based on race include racial epithets or offensive comments about members of a particular race, or harassment based on stereotypes about the complainant&#;s race.[9] It also can include harassment based on traits or characteristics linked to an individual&#;s race, such as the complainant&#;s name, cultural dress, accent or manner of speech, and physical characteristics, including appearance standards (e.g., harassment based on hair textures and hairstyles commonly associated with specific racial groups).[10]
Example 1: Race-Based Harassment. Mia, a personal trainer at a large fitness center chain, is multiracial (Asian, Black, and Pacific Islander). Some coworkers refer to Mia using epithets directed at her mixed-race status, including &#;mutt.&#; These coworkers also call Mia slurs based on her separate racial attributes. Other coworkers make comments that they don&#;t consider to be insulting,[11] such as telling Mia how &#;exotic&#; she looks; calling her &#;cute nicknames,&#; such as &#;panda&#; and &#;Moana&#;; and commenting that Mia inherited the &#;best traits,&#; such as being strong because she is part Pacific Islander, athletic because she is part Black, and smart and articulate because she is part Asian. Based on these facts, the coworkers&#; harassing conduct toward Mia is based on race.
Example 2: Race-Based Harassment. Chelsea, a hostess at an upscale restaurant, is a Black woman who wears her hair in locs for both cultural reasons and to reflect the natural texture of her hair. Chelsea&#;s manager, Gregor, periodically tries to touch Chelsea&#;s hair while asking questions about it, such as &#;why does Black people&#;s hair look like that?&#; and &#;what does it feel like?&#; Gregor says that Chelsea could go from &#;savage to stunning&#; if she relaxed her hair. On other occasions, Gregor criticizes her hair as &#;messy,&#; &#;untamed,&#; and &#;unprofessional.&#; Based on these facts, Gregor&#;s harassing conduct toward Chelsea is based on her race.
Although sometimes related to harassment based on race or national origin, color-based harassment due to an individual&#;s pigmentation, complexion, or skin shade or tone is independently covered by Title VII.12 For example, if a supervisor harasses Black employees with darker complexions but does not harass Black employees with lighter skin tones, this may be evidence that the harassment was due to color.
Example 3: Color-Based Harassment. Shawn, an inspector at a medical equipment manufacturing facility, is a Pakistani-American with brown skin. Two of Shawn&#;s supervisors make comments to him that suggest his skin is the color of human feces. Based on these facts, the supervisors&#; harassing conduct toward Shawn is based on his color.13
Title VII prohibits employment discrimination, including unlawful harassment, based on national origin&#;meaning discrimination due to a complainant&#;s, or the complainant&#;s ancestors&#;, place of origin. Harassment based on national origin includes ethnic epithets, derogatory comments about individuals of a particular nationality, and use of stereotypes about the complainant&#;s national origin.14 It also can include harassment regarding traits or characteristics linked to an individual&#;s national origin, such as physical characteristics, ancestry, or ethnic or cultural characteristics (e.g., attire or diet), and linguistic characteristics (e.g., non-English language accent or a lack of fluency in English).15
Example 4: Harassment Based on National Origin. Antonio is an immigrant from Mexico who works at a butcher shop. Over the course of several months, his Mexican-American and White managers subject him to slurs about his Mexican origin such as &#;wetback&#; and other vulgar and derogatory epithets in Spanish. They also mock and ridicule Antonio&#;s accent and limited English proficiency. Based on these facts, the managers&#; harassing conduct toward Antonio is based on his national origin.
Title VII prohibits employment discrimination, including unlawful harassment, based on religion. Religion is broadly defined under Title VII.[16] Harassment based on religion includes the use of religious epithets or offensive comments based on a complainant&#;s religion (including atheism or lack of religious belief[17]), religious practices, or religious dress.18 It also includes harassment based on religious stereotypes[19] and harassment because of a request for a religious accommodation or receipt of a religious accommodation.[20]
Example 5:21 Religion-Based Harassment. Thiago, a fraud investigator at a property and casualty insurer, is agnostic and rejects organized religion. After Thiago&#;s sister died unexpectedly, Thiago is despondent. He is approached by a coworker, Laney, who says that she can communicate with the dead and has received the following messages from Thiago&#;s sister: the sister is suffering in Hell, and Thiago will go to Hell as well if he does not &#;find God.&#; Thiago becomes upset and asks Laney to never bring up the topic again. Nevertheless, Laney repeatedly encourages Thiago to find religion so Thiago will not &#;go to Hell like his sister,&#; despite Thiago&#;s ongoing requests for Laney to &#;drop it.&#; Based on these facts, Laney&#;s harassing conduct toward Thiago is based on religion.22
Example 6: Harassment Based on Religious Accommodation. Harpreet is an observant Sikh who, because of his religious beliefs, does not cut his beard. He works as an emergency medical technician (EMT) for an ambulance services provider. Harpreet&#;s employer has a policy that requires all EMTs to be able to wear a tight-fitting respirator, which requires a clean-shaven face where the respirator touches the skin. When Harpreet&#;s employer learns that he cannot meet the respirator requirement due to his beard, the employer grants Harpreet a religious accommodation by permitting Harpreet to use a loose-fitting powered air purifying respirator (PAPR) instead of a tight-fitting respirator. Harpreet&#;s supervisor, Jessie, has expressed disdain for Harpreet&#;s accommodation, including by telling colleagues that PAPRs scare patients and saying, &#;Anybody who can&#;t wear a basic respirator shouldn&#;t be working here.&#; Jessie also refers to Harpreet as &#;looking unprofessional&#; or &#;shabby.&#; Based on these facts, Jessie&#;s harassing conduct is targeted at Harpreet&#;s religious accommodation and therefore is based on Harpreet&#;s religion.
Religious harassment also encompasses explicitly or implicitly coercing employees to engage in religious practices at work.23
Example 7: Harassment Based on Religious Coercion. Sandra, an exterminator for a pest control service, is a Christian. The owner of the pest control service, Fabian, is a self-described &#;spiritual guru&#; who believes he is called by the universe to help people transcend the Judeo-Christian belief system. Fabian regularly makes comments to Sandra denigrating Judeo-Christian tenets; asks Sandra probing questions about her faith; distributes tracts arguing that &#;traditional religion&#; is the cause of all ills in modern society; and states a &#;strong hope&#; that Sandra will attend his lunchtime lectures, which consistently focus on Fabian&#;s religious beliefs. While Fabian claims he would never require employees to share his beliefs, attend his lectures, or read the material he distributes, he also keeps track of which employees do and do not participate in his religious activities and tends to act with favoritism toward employees who agree with or are receptive to his religious messages. Sandra feels she must feign interest in Fabian&#;s beliefs or else she will be subject to ostracism or possibly even termination. Based on these facts, Fabian&#;s harassing conduct toward Sandra is based on religion.24
Title VII prohibits employment discrimination, including unlawful harassment based on sex. Under Title VII, &#;sex&#; includes &#;pregnancy, childbirth, and related medical conditions&#; and sexual orientation and gender identity, as discussed in this section.
Harassing conduct based on sex includes conduct of a sexualized nature, such as unwanted conduct expressing sexual attraction or involving sexual activity (e.g., &#;sexual conduct&#;); sexual attention or sexual coercion, such as demands or pressure for sexual favors; rape, sexual assault, or other acts of sexual violence; or discussing or displaying visual depictions of sex acts or sexual remarks.25
Harassment based on sex under Title VII26 also includes non-sexual conduct based on sex,27 such as sex-based epithets; sexist comments (such as remarks that women do not belong in management or that men do not belong in the nursing profession); or facially sex-neutral offensive conduct motivated by sex (such as bullying directed toward employees of one sex).28
Example 8: Sex-Based Harassment. John, an employee in a supermarket bakery department, works with a coworker, Laverne, who rubs up against him in a sexual manner, tells sexual jokes, and displays dolls made from dough in sexual positions. Based on these facts, Laverne&#;s harassing conduct toward John is based on his sex.
Example 9: Sex-Based Harassment. Aiko, a construction worker on a road crew, is subjected to sex-based epithets and other demeaning sex-based language by her supervisor, such as &#;sandwich-maker&#; and &#;baby.&#; This supervisor also disparages women&#;s participation in the construction industry, for example by stating that road construction is &#;a man&#;s job.&#; Based on these facts, the supervisor&#;s harassing conduct toward Aiko is based on sex.
Example 10: Sex-Based Harassment. Ferguson, a millwright at a cabinet manufacturer, has just returned from a short period of medical leave taken to recover from a vasectomy. Immediately upon his return, some of Ferguson&#;s coworkers repeatedly ridicule Ferguson for the vasectomy, calling him &#;gelding,&#; &#;eunuch,&#; and &#;numb nuts,&#; and saying things such as &#;why did you neuter yourself like a dog?&#; and &#;a real man would never get a vasectomy.&#; Based on these facts, the coworkers&#; harassing conduct toward Ferguson is based on sex.
Sex-based harassment under Title VII includes harassment based on pregnancy,[30] childbirth, or related medical conditions.31 This can include issues such as lactation;[32] using or not using contraception;[33] or deciding to have, or not to have, an abortion.[34] Harassment based on these issues generally would be covered if it is linked to a targeted individual&#;s sex including pregnancy, childbirth, or related medical conditions.
Example 11: Pregnancy-Based Harassment. Kendall, a veterinary assistant at a nationwide veterinary clinic chain, recently announced to coworkers that she is pregnant. After Kendall&#;s announcement, one of her supervisors, Veronica, begins berating Kendall&#;s work as slow, shoddy, and scatter-brained, and accuses Kendall of focusing more on getting ready for her new baby than doing her job. Veronica also begins to scrutinize Kendall&#;s bathroom usage and, on at least one occasion, yelled at Kendall for &#;always&#; being in the bathroom. As Kendall&#;s pregnancy progresses, Veronica refers to Kendall as a &#;heifer,&#; and makes the comment, &#;We don&#;t treat livestock at this office.&#; Based on these facts, Veronica&#;s harassing conduct toward Kendall is based on sex (pregnancy).
Example 12: Harassment Based on Pregnancy-Related Medical Condition (Lactation). Lisbet, a software engineer for a video game publisher, recently returned to work after giving birth. Lisbet uses a lactation room at work as needed in order to express breastmilk. Lisbet&#;s coworker, Nathaniel, knocks loudly on the lactation room door while Lisbet is inside and pretends that he is going to enter. Nathaniel also refers to Lisbet&#;s breasts as &#;milk jugs,&#; makes suckling noises when Lisbet enters and exits the lactation room, and asks Lisbet if he can have a squirt of milk for his coffee.35 Nathaniel also refers to the lactation room as &#;Lisbet&#;s getaway&#; and asks why he is not allowed to take breaks in private rooms. Based on these facts, Nathaniel&#;s harassing conduct toward Lisbet is based on a pregnancy-related medical condition (lactation).
Example 13: Harassment Based on Pregnancy-Related Medical Condition (Morning Sickness). Kristina, a graphic designer at a marketing firm, is experiencing pregnancy-related morning sickness. Kristina&#;s employer accommodates her limitations due to morning sickness by permitting Kristina to telework up to three days per week and utilize flexible scheduling on the days she comes into the office. Kristina&#;s colleagues complain that pregnant women always get special perks and privileges and accuse Kristina of getting pregnant &#;just so she can kick back, relax at home on the couch, and collect a paycheck.&#; During a team meeting to discuss staffing a new, high-priority portfolio, when Kristina requests to be considered, her coworkers scoff that &#;if Kristina is so sick that she cannot come into the office, how can she be well enough to work on such an important account?&#; Based on these facts, the coworkers&#; harassing conduct toward Kristina is based on a pregnancy-related medical condition (morning sickness).
Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity.36 Accordingly, sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed.37 Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity;38 physical assault due to sexual orientation or gender identity;39 outing (disclosure of an individual&#;s sexual orientation or gender identity without permission);40 harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person&#;s sex;41 repeated and intentional use of a name or pronoun inconsistent with the individual&#;s known gender identity (misgendering);[42] or the denial of access to a bathroom or other sex-segregated facility consistent with the individual&#;s gender identity.43
Example 14: Harassment Based on Sexual Orientation. Heidi, a staff journalist at a media conglomerate, recently attended a company award ceremony with her wife, Naomi. After the ceremony, one of Heidi&#;s coworkers, Trevor, approaches Heidi and says, &#;I did not know you were a d*ke, that&#;s so hot.&#; Trevor asks Heidi questions such as, &#;because you are both girly-girls, who is the man in your marriage?&#; and &#;who wears the pants at home?&#;44 Trevor also repeatedly sends the scissor emoji and images of scissors to Heidi, which Trevor intends as a euphemism for Heidi having sex with her wife. Based on these facts, Trevor&#;s harassing conduct toward Heidi is based on her sexual orientation.
Example 15: Harassment Based on Gender Identity. Chloe, a purchase order coordinator at a retail store warehouse, is approached by her supervisor, Alton, who asks whether she was &#;born a man&#; because he had heard a rumor that &#;there was a transvestite in the department.&#; Chloe disclosed to Alton that she is transgender and asked him to keep this information confidential. After this conversation, Alton instructed Chloe to wear pants to work because a dress would be &#;inappropriate,&#; despite other purchase order coordinators being permitted to wear dresses and skirts. Alton also asks inappropriate questions about Chloe&#;s anatomy and sexual relationships. Further, whenever Alton is frustrated with Chloe, he misgenders her by using, with emphasis, &#;he/him&#; pronouns, sometimes in front of Chloe&#;s coworkers. Based on these facts, Alton&#;s harassing conduct toward Chloe is based on her gender identity.45
The Age Discrimination in Employment Act (ADEA)46 prohibits age-based discrimination, including unlawful harassment, of employees forty or older because of their age.47 This includes harassment based on negative perceptions about older workers.48 It also includes harassment based on stereotypes about older workers, even if they are not motivated by animus, such as pressuring an older employee to transfer to a job that is less technology-focused because of the perception that older workers are not well-suited to such work or encouraging an older employee to retire.49
Example 16: Age-Based Harassment. Lulu, age sixty-eight, is a makeup artist and salesperson at a department store. Lulu&#;s manager repeatedly asks Lulu about her retirement plans, despite Lulu expressing that she has no interest in retiring. Lulu&#;s manager also tells her that the brand needs &#;fresh faces&#; and &#;high energy.&#; When Lulu makes even a minor mistake, her manager disparages Lulu for having &#;senior moments.&#; Further, on one occasion, the manager snapped at Lulu, &#;Nobody wants makeup advice from their granny.&#; Based on these facts, the manager&#;s harassing conduct toward Lulu is based on her age.
Title I of the Americans with Disabilities Act (ADA)51 prohibits employment discrimination, including unlawful harassment, based on an individual&#;s physical or mental disability,[52] including harassment based on stereotypes about individuals with disabilities in general or about an individual&#;s particular disability. It also can include harassment based on traits or characteristics linked to an individual&#;s disability, such as how an individual speaks, looks, or moves.[53]
Example 17: Disability-Based Harassment. Abdul, a financial advisor at a private wealth management firm, has a pronounced stutter resulting from anxiety. Abdul&#;s coworkers mockingly imitate his stutter54 and ask Abdul to repeat himself, even though the coworkers understood what Abdul said. Based on these facts, the coworkers&#; harassing conduct toward Abdul is based on disability.
Disability-based harassment also includes:
Harassment because of an individual&#;s request for, or receipt of, reasonable accommodation;[55]
Example 18: Harassment Based on Disability Accommodation. Charlie, a seasonal cashier at a garden supply store, has psoriatic arthritis, which affects his knees and ankles and makes standing for prolonged periods of time painful. Charlie&#;s employer has a rule that prohibits cashiers from using fatigue standing mats or chairs while at the cash register, but grants Charlie a reasonable accommodation under the ADA to use a mat or chair as needed. Charlie&#;s coworkers berate him for getting &#;special treatment.&#; They also hide Charlie&#;s mat and chair, which prevents Charlie from starting his work on time, because it&#;s &#;unfair&#; that he gets to be &#;more comfortable&#; than them. Based on these facts, the coworkers&#; harassing conduct toward Charlie is based on disability (receipt of a reasonable accommodation).
harassment based on the disability of an individual with whom they are associated.58
Example 19: Harassment Based on Disability of Person with Whom the Employee Is Associated. Karl&#;s husband, Jamal, has long COVID that meets the ADA&#;s definition of disability. Karl&#;s employer, a business consulting firm, has a policy that allows employees to telework three days each week. One of Karl&#;s coworkers, Lenny, posts a statement on the shared team communication platform that reads in part, &#;Keep Karl Home Every Day! If Karl&#;s husband is so sick, then Karl needs to stay at home, otherwise he is going to infect us all!&#; Karl periodically uses his accrued paid time off to take Jamal to doctor&#;s appointments, which often coincide with team meetings. Sometimes during these meetings, a different coworker, Barry, questions Karl&#;s professional competence and dedication given his recent focus on taking care of Jamal, stating that Karl seems more interested in helping Jamal &#;get over a cold&#; than doing his job. Based on these facts, Lenny&#;s and Barry&#;s harassing conduct toward Karl is based on disability (association with a person with a disability).
The Genetic Information Nondiscrimination Act (GINA)60 prohibits employment discrimination, including unlawful harassment, on the basis of genetic information, which includes harassment based on an individual&#;s, or an individual&#;s family member&#;s, genetic test or on the basis of an individual&#;s family medical history.61 For example, harassment based on genetic information includes harassing an employee because the employee carries the BRCA gene, which is linked to an increased risk of breast and ovarian cancer, or because the employee&#;s mother recently experienced a severe case of norovirus, which resulted in overnight hospitalization.62
Example 20: Harassment Based on Genetic Information. Manuella, a web developer at a university, joined in on a lively conversation between coworkers who recently used DNA ancestry testing to learn more about their extended families. Some mentioned finding unknown cousins, and others said that they had extended family from countries that surprised them. Manuella, taking part in the conversation, mentioned that although she had not taken a DNA ancestry test, a cousin recently took a genetic test that revealed that they had inherited the gene mutation that would put them at a higher risk of developing Hypertrichosis, a condition also known as Werewolf Syndrome. Soon after this discussion, coworkers began to refer to Manuella as &#;the werewoman,&#; to make howling noises when they passed her office, and to leave dog treats on her desk. Based on these facts, the coworkers&#; harassing conduct toward Manuella is based on her genetic information.
The EEO statutes prohibit employers from retaliating against employees and applicants for employment because of their &#;protected activity&#;&#;opposing an employer&#;s unlawful discrimination under the EEO statutes or participating in an investigation, hearing, or proceeding under the EEO statutes.63
Sometimes, retaliatory conduct is characterized as &#;retaliatory harassment.&#; The threshold for establishing unlawful retaliatory harassment is different than that for a discriminatory hostile work environment. As the Supreme Court explained in Burlington Northern & Santa Fe Railway Co. v. White, the EEO laws&#; antiretaliation provisions complement their antidiscrimination provisions but protect against a broader range of behaviors&#;they forbid anything that might deter a reasonable person from engaging in protected activity.[64] Thus, retaliatory harassing conduct can be challenged under the Burlington Northern standard even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment.[65]
If an employee has been subjected both to harassment based on race, sex, or another protected characteristic and to retaliation, then the legal standard or standards that apply to particular harassing conduct will depend on whether the conduct is being challenged as part of a harassment claim, a retaliation claim, or both.
For a more detailed discussion of retaliation, see EEOC, Enforcement Guidance on Retaliation and Related Issues (), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.
Discussed below are some issues that apply to all of the covered bases.
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, religion, or sexual orientation&#;is covered by federal EEO law even if the perception is incorrect.[66] Thus, harassment of a Hispanic person because the harasser believes the individual is Pakistani is national origin-based harassment, and harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even if 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 class67 or harassment because the complainant associates with someone in the same protected class.68 For example, the EEO laws apply to harassment of a White employee because his spouse is Black69 or harassment of a Black employee because she has a biracial child.70 Although the association often involves a close relationship, such as with a close relative or friend, the degree of closeness is irrelevant to whether the association is covered.[71]
Harassment that is based on the complainant&#;s protected characteristic is covered even if the harasser is a member of the same protected class (intraclass harassment).[72]
Example 21: Intraclass Harassment Based on Age. Pedro, age sixty-five, is a salesperson at a furniture store. Pedro&#;s supervisor, Simon, age fifty-two, has recently become dismissive of Pedro. After Pedro asks to use some personal leave, Simon denies Pedro&#;s request, stating, &#;You old motherf**ker, you are not taking a day off.&#; After that, Simon stops referring to Pedro by name, and instead calls him &#;old man&#; and &#;pops.&#;73 Simon also refers to Pedro as &#;over the hill.&#; Based on these facts, Simon&#;s harassing conduct toward Pedro is based on Pedro&#;s age even though Simon also is within the ADEA&#;s protected class (40 or older).
Example 22: Intraclass Harassment Based on National Origin. Mei, a flight attendant at a global airline, is of Chinese ancestry. Her supervisor, Hua, is also of Chinese ancestry. Hua frequently berates Mei for not living up to Hua&#;s conception of an ideal Chinese worker. For example, Hua calls Mei lazy, useless, and spoiled; says that Mei&#;s ancestors would be ashamed of her; and says that Mei &#;wouldn&#;t last a day in China.&#; Hua also says Mei should be proud to come from such an industrious and responsible culture, and that Mei &#;might as well be Caucasian&#; based on her mediocre performance. Based on these facts, Hua&#;s harassing conduct toward Mei is based on Mei&#;s national origin even though they are both of Chinese ancestry.74
Example 23: Intraclass Harassment Based on Sex. Dara and Sloane are lab technicians at a pharmaceutical research laboratory. On multiple occasions, one of their coworkers, Rose, makes dismissive comments to Dara, who has three children, such as, &#;shouldn&#;t mothers stay at home with their kids?&#; and &#;don&#;t expect to move up the career ladder with all of those children.&#; Rose also makes dismissive comments to Sloane, who has no children and intends to remain childfree, on a handful of occasions, such as, &#;women who don&#;t want children are frigid,&#; &#;it is sad to watch you choose a career over a family,&#; and &#;are you sure you don&#;t want a baby? Every woman should want a baby!&#; Based on these facts, Rose&#;s harassing conduct toward Dara and Sloane is based on their sex even though they all are women.
Harassment may be based on more than one protected characteristic of an employee, either under a single EEO statute, such as Title VII, or under multiple EEO statutes, such as Title VII and the ADEA. For example, a Black woman might be harassed both because she is Black and because she is a woman, or alternatively, 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 characteristics, which may, in fact, compound the harm.[75] If a Black woman is harassed based on stereotypes about Black women, such harassment is covered as both race and sex discrimination. Similarly, if a woman who is age forty or older is harassed based on stereotypes about older women, this harassment is covered as both age and sex discrimination.76
Example 24: Intersectional Harassment Based on Age and Sex. Janet, age fifty-one, works as a sales associate for a pet supplies store. One day at work, Janet quickly removed her jacket and began fanning herself. An assistant manager, Truman, stated when he observed her behavior, &#;Oh, you&#;re having a hot flash! You must be menopausal.&#; Truman then added, &#;You know your husband will start looking for younger women.&#; Janet covered her ears and said, &#;I don&#;t want to hear you talking about any of this.&#; On another occasion when Janet mixed up a customer order, Truman yelled at her and asked if the mistake was because she was having a &#;menopausal moment&#; or because she was just getting too old to get the orders right. Janet was visibly flustered by his yelling, which prompted Truman to add, &#;Don&#;t get so emotional. Isn&#;t there something you can take for your hormones?&#; Based on these facts, Truman&#;s harassing conduct toward Janet is based on her status as an older woman.
Harassment based on one protected characteristic, such as national origin, also may 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 Middle Eastern and Muslim may be based on both national origin and religion.[77]
Harassment based on protected characteristics includes harassment based on social or cultural stereotypes regarding how persons of a particular protected group, such as persons of a particular race, national origin, or sex, may act, appear, or behave.[78] This includes, but is not limited to, harassment based on stereotypes about racial, ethnic, or other protected characteristics, or sex-based stereotypes about family responsibilities,[79] suitability for leadership,[80] or gender roles.81
Example 25: Harassment Based on Stereotype About Race. Sydney, who is Black, is a sales associate at a jewelry store. One of Sydney&#;s coworkers, Mackenzie, repeatedly admonishes Sydney not to steal anything from the store.82 Mackenzie frequently brings up news stories and social media videos depicting Black people engaging in theft, and suggests that all Black people, including Sydney, have a propensity to steal. Based on these facts, Mackenzie&#;s harassing conduct toward Sydney is based on race.
Example 26: Harassment Based on Stereotypes About National Origin. Mirlande, a Haitian-American, is an esthetician at a luxury resort and spa. One of Mirlande&#;s coworkers, Celine, believes that all Haitians practice voodoo and, based on this cultural assumption about Haitians, repeatedly makes voodoo-related remarks, such as that Mirlande will curse staff members and clients, knows a witch doctor, and has voodoo dolls at home. Based on these facts, Celine&#;s harassing conduct toward Mirlande is based on national origin.
As discussed below in section II.B, harassing conduct need not explicitly refer to a protected characteristic to be based on that characteristic where there is other evidence 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 or targets a particular employee.[83] If an employee experiences harassment in the workplace but the evidence does not show that the harassment was based on a protected characteristic, the EEO statutes do not apply.[84]
Example 27: Insufficient Evidence That Harassment Was Based on 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 last winter Zach became increasingly hostile and rude, throwing paper at Isaiah, shoving him in the hall, and threatening to physically harm him. Zach&#;s misconduct started shortly after a disagreement during a league basketball game during which Isaiah, captain of the firm&#;s basketball team, benched Zach. No evidence was found during the investigation to link Zach&#;s threats and harassment to Isaiah&#;s national origin or color; therefore, Isaiah cannot establish that Zach&#;s misconduct subjected him to harassment because of a protected characteristic.85
Example 28: Sufficient Evidence That Harassment Was Based on a Protected Characteristic. Julius, who is Black, works on a line operation crew for a pharmaceutical manufacturer. All line crew members are Black, and they are supervised by Murphy, who is White. Murphy frequently refers to himself as a &#;zookeeper&#; and to the crew, including Julius, as &#;my animals.&#; Murphy does not refer to members of other line crews, which are comprised of non-Black employees, as &#;animals&#;; likewise, Murphy does not refer to supervisors of those other line crews as &#;zookeepers.&#; Following an investigation, evidence shows that Murphy calls Julius and crew members &#;animals&#; because of their race, even though Murphy does not directly refer to race. Based on these facts, Julius can establish that Murphy subjected him to harassment because of race, a protected characteristic.86
The determination of whether hostile-work-environment harassment is based on a protected characteristic will depend on the totality of the circumstances.87 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 principles will necessarily apply in every case.
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 targeted physical assaults based on a protected characteristic&#;discriminates on that basis.[89] The motive of the individual engaging in such conduct is not relevant to whether the conduct is facially discriminatory. Such conduct also need not be directed at a particular worker based on that worker&#;s protected characteristic, nor must all workers with the protected characteristic 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.[90] Further, derogatory comments about women are sex-based even if all employees are exposed to the comments.91
Example 29: Causation Established Where Harassment Is Facially Discriminatory. Kiran, an archivist at a non-profit foundation, 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. On a near-daily basis his coworkers make fun of his limp and leg braces by mimicking his gait and calling him names like &#;Forrest Gump&#; and &#;cr*pple.&#; Based on these facts, Kiran has been subjected to harassment based on disability that is facially discriminatory.92
Harassment is based on a protected characteristic if it is based on social or cultural expectations&#;be they intended as positive, negative, or neutral&#;regarding how persons of a particular protected group may act or appear.[93] This includes harassment based on sex-based assumptions about family responsibilities,[94] suitability for leadership,[95] gender roles,96 weight and body types,97 the expression of sexual orientation or gender identity,98 or being a survivor of gender-based violence. Similarly, harassment based on race includes derogatory comments involving racial stereotypes, such as referring to Black employees as drug dealers99 or suggesting that Black employees have the propensity to commit theft.100
Such stereotyping need not be motivated by animus or hostility toward that group.[101] For example, age-based harassment might include comments that an older employee should consider retirement so that the employee can enjoy the &#;golden years.&#;[102] Likewise, sex-based harassment might include 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.103
Example 30: Causation Established Based on Sex Stereotyping. After Eric, an iron worker, made a remark that his foreman, Josh, considered &#;feminine,&#; Josh began calling Eric &#;Erica,&#; &#;princess,&#; and &#;f*ggot.&#; Several times a week, Josh approached Eric from behind and simulated intercourse with him. More than once, Josh exposed himself to Eric. Based on these facts, Josh targeted Eric based on his perception that Eric did not conform to traditional male stereotypes and subjected Eric to harassment based on sex.104
Example 31: Causation Established Based on Sex Stereotyping. Maria, a receptionist, has recently experienced domestic violence. Because Maria must attend court dates related to the domestic violence, she discloses her situation to her supervisor, Nolan. Nolan warns Maria that she should not take &#;too much&#; leave and should not bring &#;drama&#; into the workplace because &#;women can be histrionic and unreliable.&#; Nolan also comments that &#;women think everything is domestic violence&#; and that &#;a good wife doesn&#;t have to worry about anything in her marriage.&#; Nolan begins to criticize Maria&#;s decision-making skills, stating that Maria can&#;t be relied on to make good choices because she can&#;t even manage her personal problems. Based on these facts, Nolan targeted Maria based on his sex-based perception of victims of gender-based violence and subjected Maria to harassment based on sex.
Conduct must be evaluated within the context in which it arises.105 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.&#;[106] In some contexts, terms that may not be facially discriminatory when viewed in isolation, such as &#;you people,&#; may operate as &#;code words&#; that contribute to a hostile work environment based on a protected characteristic.[107]
Example 32: 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. There is 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, the appearance of banana peels on Ron&#;s truck is likely not coincidental. Further, because banana peels are used to invoke &#;monkey imagery,&#; it would be reasonable to conclude, given the history of racial stereotypes against Black individuals, that the banana peels were intended as a racial insult. Therefore, the conduct under these circumstances constitutes harassment based on race.[108]
Conduct that is neutral on its face may be 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 then discounted as non-discriminatory.[109] In some instances, however, facially discriminatory conduct may not be sufficiently related to facially neutral conduct to establish that the latter also was discriminatory.[110]
Example 33: 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; 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, that conduct was closely related to the religious harassment and thus the entire pattern of harassment was based on Imani&#;s religion.[111]
If harassment began or escalated shortly after the harasser learned of the complainant&#;s protected status, including religion, pregnancy, sexual orientation, or gender identity, the timing may suggest that the harassment was discriminatory.[112]
Example 34: Timing as Evidence of Causation. Sami, a security guard at an electronics store, discloses his Egyptian ancestry to coworkers during a conversation about turmoil in the Middle East. Following this disclosure, Sami&#;s colleagues, who had made offensive comments about Middle Eastern people during the conversation, begin to avoid and ostracize him. Approximately one week after Sami disclosed his national origin, Sami arrives late for his shift, and a coworker asks, &#;Did your camel break down?&#; Another coworker begins to hum the Bangles&#; &#;Walk Like an Egyptian&#; and mime the music video&#;s dance moves when Sami walks by. The timing of the coworkers&#; conduct, in addition to the content of the conduct, provides evidence that Sami has been subjected to discrimination based on national origin.
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.[113]
Example 35: Comparative Evidence Gives Rise to Inference that Harassment 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 regularly hovers over Kailey and Anu as they work to make sure they don&#;t &#;mess up.&#; Tyler yells and shakes his fist at Kailey and Anu when he is angry at them. In addition, although Tyler is occasionally irritable, he generally engages in friendly banter with Sandeep and Levi that is different from the aggressiveness that he 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 permits Sandeep and Levi to leave the office early on Fridays and does not monitor their work performance. Tyler&#;s different treatment of women and men who are similarly situated would support the conclusion that Tyler&#;s treatment of Kailey and Anu was based on their sex.114
A claim of sex-based harassment may rely on any of the causation theories described in the preceding sections and in this document. The Supreme Court has addressed three non-exclusive evidentiary routes for establishing causation in a sex-based 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.115 As noted, these three routes are not exclusive; they are examples of ways in which it may be established that harassment is based on sex.116 For example, harassment is sex-based if it occurs because of sex stereotyping117 or if members of one sex are routinely sexualized.
For workplace harassment to violate the law, not only must it be based on a protected characteristic, as discussed in the preceding section, it also must affect a &#;term, condition, or privilege&#; of employment.118
In Meritor Savings Bank, FSB v. Vinson, the Supreme Court discussed two examples of 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 constructively119 changes the terms or conditions of employment through creation of a hostile work environment.[120]
The first type of claim was initially described as &#;quid pro quo&#; harassment in the context of sexual harassment.[121] In early sexual harassment cases, quid pro quo described a claim in which a supervisor carried out an adverse change to an employee&#;s compensation, terms, conditions, or privileges of employment because the employee rejected the supervisor&#;s sexual advances.[122]
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However, citing the Supreme Court&#;s 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.&#;[123] 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.&#;[124] For example, if a supervisor denies an employee a promotion or other job benefit for rejecting sexual advances, the denial of the job benefit itself is an explicit change to the terms and conditions of employment and thus constitutes unlawful sex discrimination.[125]
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. The Supreme Court explained in in Harris v. Forklift Systems, Inc. that to establish a hostile work environment, offensive conduct must be both subjectively hostile and objectively hostile.126
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.[127]
The EEO statutes are therefore not limited to discriminatory conduct that has tangible or economic effects and instead &#;strike at the entire spectrum of disparate treatment.&#;[128] However, these statutes do not impose a general civility code that covers &#;run-of-the-mill boorish, juvenile, or annoying behavior.&#;[129] As discussed below in section III.B.3, the standard established in Harris takes a &#;middle path&#; that requires the conduct to be more than merely offensive but does not require that the conduct cause psychological harm.[130]
These are key questions that typically arise in evaluating a hostile work environment claim and whether it amounts to unlawful harassment:
A wide variety of conduct by supervisors, coworkers, or non-employees that affects the workplace can contribute to a hostile work environment, 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 hostile work environment claim also can include conduct that is independently actionable as disparate treatment. For example, if a woman was subjected to offensive sex-based comments and demoted because she refused to submit to unwanted sexual advances, the demotion would be independently actionable as sex discrimination (disparate treatment) and also actionable as part of a hostile work environment.[131]
The EEO laws prohibit harassment resulting in a work environment that is both subjectively and objectively hostile.
Example 36: Employee Was Subjected to Both Subjectively and Objectively Hostile Work Environment. Chadwick, who is Black, was recently hired as a sommelier and wine program director at an upscale restaurant. The restaurant is co-owned by Mark, who comes to check in on his investment approximately every three months. Mark arrives for a visit as the staff is preparing to open for evening service. Upon seeing Chadwick, whom Mark has not met before, Mark loudly asks, &#;Which dumbass manager is hiring n****rs for customer service positions now?&#; Mark continues on a racist diatribe that the entire staff can hear, leaving Chadwick humiliated and in tears. Based on these facts, Chadwick has been subjected to conduct that creates both a subjectively hostile work environment and an objectively hostile work environment and therefore the conduct has resulted in a hostile work environment that violates Title VII.
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 is logically part of demonstrating subjective hostility. If, for example, a complainant establishes that a series of lewd, sexist, and derogatory comments based on sex 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.132
The unwelcomeness inquiry derives from the Supreme Court&#;s decision in Meritor Savings Bank, FSB v. Vinson, where the Court stated that &#;[t]he gravamen of any sexual harassment claim is that the alleged sexual advances were &#;unwelcome,&#;&#;133 and from the EEOC Guidelines upon which the Court relied.134 In Meritor, the Court distinguished the concept of unwelcomeness from the concept of voluntariness, noting that the complainant&#;s participation in the challenged conduct did not necessarily mean that she found it welcome.135 When the Supreme Court refined the hostile work environment analysis in , in Harris v. Forklift Systems, Inc., to require a showing that the conduct was both subjectively and objectively hostile,136 the Court did not explicitly eliminate unwelcomeness as the gravamen of a harassment claim.
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.137 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.138 In the Commission&#;s view, this latter approach incorporates an unnecessary step in a court&#;s legal analysis of workplace harassment.
In general, the complainant&#;s own statement that the complainant perceived conduct as hostile is sufficient to establish subjective hostility.[139] 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.140 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.141 To be clear, although evidence of contemporaneous complaints may be sufficient to show subjective hostility, such evidence is not necessary.
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 for the subjectivity analysis whether other men in the workplace would welcome these advances.[142] In addition, the fact that a complainant tolerated or even participated in the conduct does not necessarily mean that he did not find it hostile; 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.&#;143 By contrast, 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, then subjective hostility may be at issue.[144]
A complainant&#;s subjective perception can change over time. For example, a complainant who did not perceive certain conduct as unwelcome 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,[145] or where a colleague&#;s race-based jokes are initially dismissed as poor attempts at humor, but become unwelcome when they persist or are later accompanied by additional race-based conduct. 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.[146] 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.[147]
Even if a complainant subjectively finds conduct based on a protected characteristic to be hostile, the conduct does not constitute a violation of federal EEO law unless it is also sufficiently severe or pervasive to create an objectively hostile work environment.[148]
Conduct need not be both severe and pervasive to establish a hostile work environment: the legal standard is severe or pervasive. The more severe the harassment, the less pervasive it must be, and vice versa.[149] There is neither a &#;magic number&#; of harassing incidents that automatically establishes a hostile work environment nor a minimum threshold for severity.[150] Whether a series of incidents 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.151
The issue of whether conduct creates a hostile work environment depends on the totality of the circumstances, as viewed from the perspective of a reasonable person, and no single factor is determinative.152 Some relevant factors are 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 an employee psychological harm.[153] Another relevant factor is whether there is a power disparity&#;and its extent&#;between the harasser and the person harassed.[154] These factors are not exhaustive, and &#;no single factor is required&#; to establish an objectively hostile work environment.[155]
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.[156] For example, if an employee alleges that her supervisor subjected her to harassing conduct based on both race and sex, then the combined effect of the alleged race-based and sex-based harassment should be considered, even if the employee cannot establish that either the race-based harassment or sex-based harassment, standing alone, is sufficiently severe or pervasive.157
Example 37: Sex-Based Remark Does Not Create Hostile Work Environment. Roxana and Liam, both audio and video technicians at a broadcast news station, are in a heated meeting about upcoming holiday programming. After Roxana makes a suggestion with which Liam disagrees, Liam says to Roxana, &#;It must be your time of the month, are you on the rag?&#; Although harassment based on menstruation can constitute or contribute to a hostile work environment based on sex,158 Liam&#;s lone remark is insufficient to create an objectively hostile work environment, despite being offensive.
Example 38: Age-Based Harassment Creates Hostile Work Environment. Henry, age sixty-two, is a consultant at a professional services company. Ryan, his supervisor, calls him &#;old man&#; on a periodic basis. Since Henry&#;s sixtieth 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, Ryan has subjected Henry to an objectively hostile work environment based on age.159
A complainant need not show that discriminatory conduct harmed the complainant&#;s work performance to prove an objectively hostile work environment if the evidence otherwise establishes that the conduct was sufficiently severe or pervasive to alter the terms or conditions of the complainant&#;s employment.[160] 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.[161]
Example 39: 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; use sex-based epithets when describing women; and look at pornographic materials. Irina was horrified by the loudness and vulgarity of the conduct, and she frequently left the office to sit in her car and decompress from her coworkers&#; conduct. 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. Based on these facts, Irina was subjected to a hostile work environment. Although the harassing conduct did not result in a decline in her work performance or in psychological injury, the nature of the conduct and Irina&#;s reactions to it were sufficient to establish that the ongoing sexual conduct created a hostile work environment because the conduct made it more difficult for a reasonable person in Irina&#;s situation to do her job.[162]
Because a &#;supervisor&#;s power and authority invests his or her harassing conduct with a particular threatening character,&#;[163] 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.[164] 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.[165]
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.166
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.[167] 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.168
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, harassment may be more severe if a complainant has reason to 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.[169]
In limited circumstances, a single incident of harassment can result in a hostile work environment. The following is a non-exhaustive list of examples of conduct that courts have found sufficiently severe to establish a hostile work environment based on a single incident:
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.&#;&#;[177]
More frequent but less serious incidents can create a hostile work environment, and most hostile work environment claims involve a series of acts.178 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.[179] Whether a series of events is sufficiently severe or pervasive to create a hostile work environment depends on the specific facts of each case.[180] Relevant considerations may include the frequency of the conduct[181] and the relationship between the number of incidents and the time period over which they occurred.182
Example 40: 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 who shares the same schedule, sexually harassed him for several weeks. The evidence shows that Lydia directed sexual overtures and other sex-based conduct at Juan as often as several times a week, despite his repeated statements 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, the conduct was sufficiently pervasive to create a hostile work environment.[183]
Example 41: 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 women workers who found the favoritism offensive, the evidence is sufficient to show that Tasanee was subjected to a sex-based hostile work environment.184
The harassment being challenged must create an objectively hostile work environment from the perspective of a reasonable person in the complainant&#;s position.185 The impact of harassment must be evaluated in the context of &#;surrounding circumstances, expectations, and relationships.&#;[186] Discussed below are some significant aspects of context that can be relevant in determining whether harassment was sufficiently severe or pervasive to create a hostile work environment. Other considerations also may be relevant in evaluating harassment in light of the totality of the circumstances.
The determination of whether harassment was objectively hostile requires &#;an appropriate sensitivity to social context&#;187 and should be made from the perspective of a reasonable person of the complainant&#;s protected class.[188] 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 as to the complainant even if some members of the complainant&#;s protected class did not or would not find it to be hostile.[189]
In addition to protected status, other personal or situational190 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.[191] Similarly, if an undocumented worker is targeted by harassment, then the heightened risk of deportation may contribute to objective hostility.[192]
Example 42: Religion-Based Harassment Creates an Objectively Hostile Work Environment. Josephine, an IT support specialist at a regional medical facility, attends an employee appreciation barbecue lunch hosted by her employer. When asked by colleagues why she is not eating any of the barbecued pork, Josephine explains that she is Jewish and her religion&#;s dietary laws prohibit eating pork. After the barbecue, a few coworkers begin making comments to or within earshot of Josephine, such as calling Josephine &#;Jew-sephine,&#; questioning why Josephine even works because she must have a lot of &#;Jew money&#;193 in the bank, and stating that &#;Jews control the media.&#; Based on these facts, this conduct, viewed from the perspective of a reasonable Jewish person, created an objectively hostile work environment based on religion.
Example 43: 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, Lila&#;s harassment, viewed from the perspective of a reasonable person with PTSD, has created an objectively hostile work environment based on disability.
Example 44: National-Origin-Based Harassment Creates an Objectively Hostile Work Environment. Somchai, a Thai national, performs seasonal agriculture work at a sweet potato farm and has an H-2B visa. Somchai is told that his employer specifically recruits individuals from Thailand because they are obedient and submissive and have a good work ethic. At the worksite, Somchai is subject to frequent physical and verbal abuse, including epithets such as &#;slant eyes&#; and &#;rice eater.&#; Further, if Somchai&#;s supervisor observes Somchai pausing in his work, even to use the bathroom or eat lunch, the supervisor threatens to have Somchai&#;s visa revoked, saying, &#;That will turn you into an &#;illegal&#; so I can call ICE and have you arrested and deported.&#;194 Based on these facts, the national-origin-based harassment experienced by Somchai, which is compounded by Somchai&#;s vulnerability as a migrant worker and visa holder, is sufficiently severe or pervasive to create an objectively hostile work environment.
Example 45: Sex-Based Harassment Creates an Objectively Hostile Work Environment. Velma, a technician at a metal fabrication company, has recently been subjected to dating violence by her long-term intimate partner, which resulted in Velma moving out of their shared residence and into a shelter. Velma&#;s coworker, Dan, learns about Velma&#;s current living situation and, viewing her as vulnerable, asks Velma out on a date. Despite Velma declining his request, during each shift that they work together, Dan continues to say things like, &#;Is living in a shelter really worse than cuddling me at night?&#;; &#;I&#;ll let you live with me free of charge on one condition: that you clean my house while naked&#;; and &#;the only thing that I would ever hit is that ass.&#; Based on these facts, the sex-based harassment experienced by Velma, which must be viewed in the context of her vulnerability as a survivor of dating violence, is sufficiently severe or pervasive to create an objectively hostile work environment.
Example 46: Harassment Based on Gender Identity Creates an Objectively Hostile Work Environment. Jennifer, a female cashier who is transgender and works at a fast-food restaurant, is regularly and intentionally misgendered by supervisors, coworkers, and customers over a period of several weeks. One of her supervisors, Allison, intentionally and frequently uses Jennifer&#;s prior male name, male pronouns, and &#;dude&#; when referring to Jennifer, despite Jennifer&#;s requests for Allison to use her correct name and pronouns. Other managers also intentionally refer to Jennifer as &#;he&#; whenever they work together. In the presence of customers, coworkers ask Jennifer questions about her sexual orientation and anatomy and assert that she is not female. After hearing these remarks by employees, customers also intentionally misgender Jennifer and make offensive comments about her transgender status. Based on these facts, which must be viewed in the context of Jennifer&#;s perspective as a transgender individual, Jennifer has been subjected to an objectively hostile work environment based on her gender identity that includes repeated and intentional misgendering.195
Conduct also must be evaluated in the context of the specific work environment in which it occurred. For example, in some instances, conduct may be more likely to create a hostile work environment if the complainant works in a remote location alone with the harasser.196 There is, however, no &#;crude environment&#; exception to Title VII.197 Prevailing workplace culture, likewise, does not excuse discriminatory conduct.[198] Thus, 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.199
As discussed above in section III.B.1, in the Commission&#;s view, demonstrating unwelcomeness is logically an inherent part of demonstrating subjective hostility. In some circumstances, evidence of unwelcomeness also may be relevant to the showing of objective hostility.[200] When analyzing whether conduct is objectively hostile, some courts have focused on whether the harasser had notice that the conduct was unwelcome&#;either because the complainant had communicated as much or the harasser otherwise had reason to know.201 Such notice may be relevant in determining whether it is objectively reasonable for a person in the complainant&#;s position to have perceived the ongoing conduct as hostile.[202] For example, flirtatious behavior or asking an individual out on a date may, or may not, be facially offensive, depending on the circumstances. An individual&#;s continued flirting or asking for a date after notice that this conduct was unwelcome can support a determination that a reasonable person in the complainant&#;s position would perceive the conduct as hostile.203
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.[204]
Example 47: Religious Expression Does Not Create an Objectively Hostile Work Environment. Ellen, an observant Lutheran, works as a nurse in a retirement community where the majority of staff are Muslim. Some of Ellen&#;s Muslim colleagues pray in accordance with their religious beliefs in a designated room observable from the nurse&#;s station, which Ellen sometimes finds distracting. Ellen&#;s Muslim colleagues also coordinate an optional lunchtime Qur&#;an study group, which all employees are invited to join. After Ellen declines the group&#;s invitation, stating that she studies the Bible at home, she is not invited to the Qur&#;an study group again. On occasion, and sometimes within Ellen&#;s earshot, Ellen&#;s Muslim colleagues openly discuss their religious beliefs in a manner that does not disparage others. Ellen tells her supervisor that she finds these discussions of religion in the workplace to be &#;disruptive.&#; Based on these facts, the religious expression of Ellen&#;s Muslim colleagues does not create an objectively hostile work environment for Ellen.
Example 48: Religious Expression Creates an Objectively Hostile Work Environment. Same facts as above, however, after Ellen declines the invitation to attend the optional lunchtime Qur&#;an study group, Sayiddah, a colleague, openly admonishes Ellen for not believing in Allah and repeatedly warns her that she is &#;on the wrong spiritual path.&#;205 Ellen asks Sayiddah to stop discussing religion with her; however, Sayiddah says she will not, explaining that her prayers come from a place of love and that she has a religious obligation to spread the word of Islam to non-believers. Based on these facts, Sayiddah&#;s religious expression creates an objectively hostile work environment for Ellen.
Because separate 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.[206] The earlier conduct, however, must be sufficiently related to the later conduct to be &#;part of the same actionable hostile work environment practice&#; claim.207 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.[208]
A hostile work environment claim may include hostile conduct that affects the complainant&#;s work environment, even conduct that may be independently actionable as unlawful discrimination (disparate treatment), as long as it is part of an overall pattern of harassing conduct. 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.209 Under such circumstances, the transfer could be challenged as part of a hostile work environment claim and would be considered in determining whether the entire course of conduct, including both the transfer and the repeated racial slurs, 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 (), https://www.eeoc.gov/policy/docs/threshold.html#2-IV-C-1-b.
Example 49: Earlier Harassment Was Sufficiently Related to Later Harassment. Rabia, a Muslim with Palestinian family ties, was subjected to offensive comments about her religion and ethnicity by her team leader in the packaging department, Josiah. Rabia complained to the plant manager, who did not take any action, and Josiah&#;s harassment continued. At her own request, Rabia was transferred to the stretch wrap department. Soon after, she saw Josiah speaking with Franklin, a stretch wrap employee, while pointing at Rabia and laughing. Starting the next day, Franklin regularly referred to Rabia using religious and ethnic slurs, including &#;m*zzie,&#; and &#;terrorist.&#; Franklin also refused to fill in for her when she needed to take a break. Rabia complained to the plant manager about Franklin&#;s conduct, but again the plant manager did not take any action. Here, Rabia 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 harassment based on religion and national origin experienced by Rabia in the two departments constitutes part of the same hostile work environment claim.[210]
Example 50: Earlier Harassment Was Insufficiently Related to Later Harassment. Cassandra, who works for a printing company, was exposed to sexually explicit discussions, jokes, and vulgar language when she worked in the company&#;s production department. After Cassandra was transferred to the estimating department, she was no longer exposed to the harassing conduct she had experienced in the production department. However, while working in 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 alleged harassment experienced by Cassandra in the production department was not part of the same hostile work environment claim as the alleged harassing conduct in the estimating department.[211]
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 will be of a hostile work environment.[212] For instance, the use of sex-based epithets may contribute to a hostile work environment for women even if the epithets are not directed at them.[213] 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.[214] 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.215
Example 51: Conduct Not Directed Against Complainant Contributes to a Hostile Work Environment. Peter is an Assistant District Manager for an insurance company. Peter, who is Black, oversees four sales representatives who also are Black. Peter reports to the District Manager, Lilliana, who is White. 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, 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.216
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.[217]
Example 52: Individual Harmed by Unlawful Harassment of Third Party. Sophie works in an accounting office with her coworker Eitan, who is Jewish and the son of Israelis, and their mutual supervisor, Jordan. Jordan makes frequent offensive comments about Jews and Israel, asking Eitan repeatedly when he was going to &#;go home and start fighting.&#; One day, after referring to Eitan with an epithet used for Jews, Jordan tells Sophie to hide Eitan&#;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 Eitan&#;s scheduled time off, effectively excluding him from the meetings. Sophie 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 national origin- and religion-based harassment of Eitan.
Sophie and Eitan both file EEOC charges. Eitan&#;s allegation is that he faced a hostile work environment based on national origin and religion; Sophie&#;s allegation is that Eitan faced a hostile work environment based on his national origin 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 Eitan&#;s work performance and ostracize him, the investigator concludes that Eitan 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 Eitan because she was required, as part of her job duties, to participate in the harassment.[218]
A hostile work environment claim may include conduct that occurs in a work-related context outside an employee&#;s regular workplace.[219] For instance, harassment directed at an employee during the course of offsite employer-required training occurs within the &#;work environment,&#; even if the training is not conducted at the employer&#;s facility.[220]
Example 53: 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, the company-sponsored holiday party. Therefore, based on these facts, the harassment occurred in Fatima&#;s work environment for purposes of a Title VII sexual harassment claim.
Example 54: Harassment During Non-Work Hours at Employer-Provided Housing Was Within Work Environment. Rosa is a seasonal farmworker who resides in employer-provided housing a few miles away from the farm where she works. Rosa&#;s employer requires all seasonal farmworkers to live in employer-provided housing, which is a converted former motel, and deducts &#;rent&#; from their paychecks. Another seasonal worker, Lucas, follows Rosa around the housing complex, waiting for her outside of her room and in the parking lot. Rosa reports Lucas&#;s behavior to management and complains that she feels unsafe, but no action is taken. Lucas&#;s behavior escalates, and he sexually assaults Rosa during non-working hours at the housing complex. Although Lucas&#;s conduct occurred outside of the workplace, it occurred in a work-related context. Therefore, based on these facts, the harassment occurred in Rosa&#;s work environment.
Conduct also occurs within the work environment if it is conveyed using work-related communications systems, accounts, devices, or platforms, such as an employer&#;s system, electronic bulletin board, instant message system, videoconferencing technology, intranet, public website, official social media accounts, or other equivalent services or technologies.[221] As with 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, ageist or ableist comments typed in a group chat, 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 55: Conduct on Employer&#;s System Was Within the Work Environment. Ted and Perry are coworkers in an architectural firm. Ted is White, and Perry is Black. Every Monday morning, Ted sends jokes from his work computer and work account to colleagues, including Perry. Many of the jokes 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 and continues to send such emails. Based on these facts, the racial jokes sent by Ted occurred within Perry&#;s work environment because, among other reasons, they were sent using Ted&#;s work computer and work account and were sent to Perry and other colleagues in 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.222 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.[223]
Conduct that can affect the terms and conditions of employment, even if 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.224 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 hostile work environment based on national origin. However, postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.
Example 56: Conduct on Social Media Platform Outside Workplace Contributes to Hostile Work Environment. Rochelle, a Black woman born in the United States, works at a tax firm. 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 a popular social media service that they all use. 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, the combined conduct, including the social media post, was sufficient to create a hostile work environment.225
Example 57: Conduct on Social Media Platform Outside Workplace Does Not Contribute to Hostile Work Environment. Michael, a courier for a management consulting firm, believes that women should dress conservatively on romantic dates and limit their food intake to appear lady-like. Michael shares these beliefs in posts on his private social media accounts. He also shares posts criticizing women&#;s sexual behavior, such as stating, &#;Why would a man buy a cow when you can get the milk for free?&#; Michael&#;s coworker Donna finds some of Michael&#;s posts online and is deeply offended even though there is no connection between the posts and the firm or any of its employees, and Michael has never spoken to Donna about these views. These posts, on their own, do not contribute to a hostile work environment based on sex because they do not have an impact on Donna&#;s work environment.
Given the proliferation of technology, it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images, such as through social media, messaging applications, or other electronic means, can contribute to a hostile work environment, if it impacts the workplace.
Example 58: Conduct on Social Media Platform Outside Workplace Contributes to Hostile Work Environment. Max, a line cook at a restaurant, begins dating Anne, a server who works at the same restaurant. During their relationship, Max obtains sexually explicit images of Anne. After Anne breaks up with Max, he threatens to share the images on social media unless she gives him a second chance. When she refuses, he posts the images on a picture-sharing social media application and tags some of their coworkers. Anne overhears her coworkers making fun of the images and talking about how Anne must have poor judgment. Anne is humiliated and finds it difficult to continue to return to work. Based on these facts, the combined conduct, including the social media post, was sufficient to create a hostile work environment.226
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.227
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 explained in section III.A), the employer is liable and there is no defense.228
In cases alleging a hostile work environment, one or more standards of liability will apply. Which standards apply to any given situation 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 sections IV.B and IV.C, below. To summarize:
Negligence provides a minimum standard for employer liability,229 regardless of the status of the harasser.230 Other theories of employer liability&#;automatic liability (for proxies and alter egos) and vicarious liability (for supervisors)&#;are additional bases for employer liability that supplement231 and do not replace the negligence standard.232
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,[233] separate analyses of employer liability should be conducted in accordance with each harasser&#;s classification.234
The liability standard for a hostile work environment depends on whether the harasser is a:
The applicable standards of liability depend on the level and kind of authority that the employer afforded the harasser to act on its behalf.
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.[235] 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.[236] By contrast, a supervisor does not qualify as the employer&#;s alter ego merely because the supervisor exercises significant control over the complaining employee.[237]
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.&#;[238] An employee may, of course, have more than one supervisor.
A &#;tangible employment action&#; means a &#;significant change in employment status&#; that requires an &#;official act&#; of the employer.239 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.240 In some cases, a decision may constitute a tangible employment action even though it does not have immediate direct or economic consequences, such as a demotion with a substantial reduction in job responsibilities but without a loss in pay.[241]
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.&#;242
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.243 The complainant might have such a reasonable belief where, for example, the chain of command is unclear or the harasser has broad delegated powers.[244] In these circumstances, the harasser is said to have &#;apparent authority.&#;245
Federal EEO laws protect employees against unlawful harassment by other employees who do not qualify as proxies/alter egos or &#;supervisors,&#; 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 with no authority over the complainant as well as 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;[246] customers,[247] including hotel guests, airline passengers, and shoppers; students;[248] hospital patients and nursing home residents;[249] and clients of the employer.[250]
Example 59: Harassment by a Non-Employee. Howard works as a stocker for a company that sells snacks and beverages in vending machines on customers&#; premises. At a hospital where Howard is assigned to stock the vending machines, he is harassed daily by a hospital employee who knows Howard&#;s schedule and waits at the vending machines for him to arrive. The hospital employee calls him &#;H*mo Howard,&#; propositions him, and makes lewd and vulgar sexual comments to him every time the hospital employee sees him. Howard reports this harassment to his employer. Although the harasser is not employed by Howard&#;s employer, because Howard&#;s employer is aware of the sex-based harassment, it has a legal obligation to correct the harassment.251
Example 60: Harassment by a Non-Employee. While cleaning a guest room, Paloma, a housekeeper at a hotel, is cornered by a naked guest who propositions her for sex. Paloma immediately reports this conduct to her supervisor. Although the guest is not an employee of the hotel, because Paloma&#;s employer is aware of the sex-based harassment, it has a legal obligation to correct the harassment.
Once the status of the harasser is determined, the appropriate standard can be applied to assess employer liability for a hostile work environment.
If the harasser is an alter ego or proxy of the employer, the employer is automatically liable for unlawful harassment and has no defense.252 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 61: Harasser Was Employer&#;s Alter Ego. Gina, who is Peruvian-American, alleges that she was subjected to unlawful harassment because of her national origin by the company Vice President, Walter. Walter is the only corporate Vice President in the organization, answers only to the company&#;s President, and exercises managerial responsibility over the company&#;s operations. Based on these facts, given Walter&#;s high rank within the company and his significant control over the company&#;s operations, Walter is an alter ego of the company, subjecting it to automatic liability for a hostile work environment resulting from his harassment.
An employer is vicariously liable for a hostile work environment created by a supervisor.253 Under this standard, liability for the supervisor&#;s harassment is attributed to the employer. As discussed below, 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 the 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:
An employer is always liable if a supervisor&#;s harassment creates a hostile work environment that includes a tangible employment action.[254] 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.&#;255 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,&#;256 and the employer is liable.257
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.[258] 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,[259] then the employer is liable for the hostile work environment created by the supervisor and there is no defense.260 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.261 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.[262]
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:
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.&#;264 The Court held that this carefully balanced defense contains &#;two necessary elements:&#;265 (1) the employer&#;s exercise of reasonable care to prevent and correct promptly any 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.266 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 unlawful 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 62: Employer Fails to Establish Affirmative Defense. Chidi, who is of Nigerian heritage, was subjected to national origin and racial 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. During meetings with Chidi and his coworkers, Ang repeatedly directed egregious racial and national origin-based epithets at Chidi, and 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 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 Ang&#;s harassment of Chidi.
Example 63: Employer Avoids Liability by Establishing Affirmative Defense. Kit was 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 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.[267] Kit never complained to the employer about the harassment or took 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 did not do so.
The first prong of the affirmative defense requires an employer to show that it exercised reasonable care both to prevent harassment and to correct harassment. To do so, 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 section IV.C.3.a (addressing unreasonable failure to prevent harassment) and section 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 correct the harassment alleged by the complainant.
Federal EEO law 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.268 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.[269]
For an anti-harassment policy to be effective, it should generally have the following features:
For a complaint process to be effective, it should generally have the following features:
For training to be effective, it should generally have the following features:280
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.282 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 these policies and procedures or to appropriately train employees.283 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.284 Considerations that may be relevant to determining whether an employer unreasonably failed to prevent harassment are discussed in detail at section IV.C.3.a, below.
Likewise, the existence of an adequate anti-harassment policy, complaint procedure, and training is not dispositive of the issue of whether an employer exercised reasonable care to correct harassing behavior of which it knew or should have known.285 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.286 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 section IV.C.3.b, below.
Example 64: 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, was sexually harassed by one of her supervisors, Pax, an assistant manager. 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. Like Pax, Mallory was designated as Aisha&#;s direct supervisor. The employer has an anti-harassment policy, which it distributes to all employees. The policy states that all supervisors are required to report and address potentially harassing conduct when they become 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, the employer placed Pax on paid administrative leave, and a week later, after concluding its investigation of Aisha&#;s allegations, the employer terminated Pax. The employer contends that it took reasonable corrective action by promptly responding to Aisha&#;s complaint to Human Resources. However, because Mallory was one of Aisha&#;s supervisors, and was therefore responsible for reporting and addressing potential harassment, the employer cannot establish the affirmative defense, having failed to act reasonably to address the harassment after Aisha spoke with Mallory.
Example 65: Employer Liable Because It Failed to Exercise Reasonable Care in Responding to Harassment&#;Supervisor Witnessed Harassment. Claudia works as an overnight stocker in the housewares department of a big box store. Her employer 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, the employer ensures that all employees receive annual anti-harassment training that reminds them of the policy, including their rights and obligations under it.
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 the employer&#;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 and was afraid that complaining would jeopardize her job, so she never reported the harassment, either to the employer or the 1-800 number.
Under these facts, the employer cannot establish the affirmative defense. While the employer 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.
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.&#;287 If an employer has exercised reasonable care, it will not be liable if the complainant could have avoided all harm from unlawful harassment but unreasonably failed to do so.288 In addition, 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.[289]
Example 66: Employer Limits Damages by Establishing Affirmative Defense. Nina was subjected to a hostile work environment based on 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 Samantha held only with Nina and her coworkers, conduct that was sufficient standing alone to create a hostile work environment. The employer has an accessible anti-harassment policy, distributes the policy broadly, and holds anti-harassment training periodically. Although Samantha&#;s harassment of Nina continues, Nina does not complain until four months later, when she accepts a position with another employer. Then, 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 employer has established both elements of the affirmative defense with respect to the continuing harassment after the meeting because the employer acted reasonably to prevent and correct harassment and 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. As a result, Nina is entitled to damages for the hostile work environment arising from the informal meeting but not for any subsequent harassment.
Proof that the employee failed to use the employer&#;s complaint procedure will normally establish the second prong of the affirmative defense if following the procedure could have avoided the harm.290 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.291 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.292 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.[293] 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, the employer may still be able to establish the second prong of the Faragher-Ellerth affirmative defense where the employee failed to act reasonably in using the process. If, for example, the complainant unreasonably failed to cooperate in the investigation, the complaint by itself would not constitute a reasonable effort to avoid harm.294
There may be reasonable explanations for an employee&#;s delay in complaining or failure to utilize the employer&#;s complaint process.295 For example:
These examples are not exclusive, and there may be other reasonable explanations for why an employee fails to report, or delays in reporting, harassment. For instance, an employee&#;s delay in reporting might be reasonable if linked to psychological trauma resulting from the underlying harassment.306
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.[307] 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.[308]
An employer is liable for a hostile work environment created by non-supervisory employees or by non-employees if it was negligent because:
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 of harassment by a supervisor or an alter ego/proxy.[310]
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 the unlawful harassment from occurring.[311] Although the relevant considerations will vary from case to case, some of the considerations may include:
Example 67: Employer Unreasonably Failed to Prevent Unlawful Harassment. Willie, a man with intellectual and developmental disabilities, works for a janitorial company. The other members of Willie&#;s cleaning crew also are individuals with intellectual and/or developmental disabilities, except for the team lead, Bobby. (As a team lead, Bobby is responsible for ensuring all crew members have access to cleaning supplies and the spaces that the crew will be cleaning; Bobby does not have the ability to hire, fire, demote, promote, transfer, or discipline Willie or any other crew member.) At the time of hire, each new employee is required to watch a one-hour anti-harassment training video focusing on legal standards and is required to sign a training acknowledgment form without the opportunity to ask questions. Although Willie watched the module, he did not understand it because of his disabilities. No one from the company discussed the training with Willie. While at worksites, Bobby frequently berates Willie and other team members by calling them &#;dummy&#; or &#;ret*rd,&#; and asks demeaning questions, such as &#;did your mom drop you on your head when you were a baby?&#; Bobby also mimics the crew members&#; disabilities. No one else from the janitorial company ever comes to Willie&#;s worksites to check in with him or the other crew members, and because Willie and the other crew members, other than Bobby, do not understand how the anti-harassment policy works, they do not complain and are subjected to continued disability-based harassment. Based on these facts, the employer has not acted reasonably to prevent Willie and the other crew members from being subjected to unlawful harassment.
Example 68: Employer Acted Reasonably to Prevent Unlawful Harassment. Danielle, a pulmonary and respiratory care nurse at a large hospital system, is responsible for caring for patients recovering from respiratory conditions at the hospital, such as Lewis, a patient recovering from pneumonia. At the time Lewis was admitted, his son stated, &#;I hope your staff is prepared because dad has some &#;old-timey&#; attitudes toward women and wandering hands.&#; The hospital is understaffed, which often requires Danielle and other nurses to work in isolated conditions, such as by entering patients&#; rooms alone. Given Lewis&#;s son&#;s statement and knowing that employees who work in isolated conditions are at a higher risk of harassment, when Danielle is assigned to care for Lewis, her supervisor warns her about Lewis&#;s potential conduct; offers to reassign Lewis to another nurse, if one is available; and, if another nurse is not available or if Danielle wants to keep the assignment, offers to assign another staff member to accompany Danielle into Lewis&#;s room. Based on these facts, the employer has acted reasonably to prevent Danielle from being subjected to unlawful harassment.
Even if an employer acted reasonably to prevent unlawful 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.[319]
Notice
Corrective Action
The first element that triggers an employer&#;s duty to take reasonable corrective action in response to harassment is having notice of the harassment.[320]
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.[321] Thus, if harassment is observed by or reported to any individual responsible for reporting harassment to management or taking corrective action, then the employer has actual notice of the harassment. For example, an employer 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 the harassment.[322] 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.[323]
Example 69: Employer Had Notice of Harassment. Lawrence, a Black man in his sixties, was employed as a laborer in a distribution yard where he was subjected to race- and age-based harassment by coworkers. Although Lawrence&#;s employer contends that it was never notified of the harassment until Lawrence made a complaint after being fired for misconduct, a &#;yard lead,&#; who was responsible for instructing and organizing teams of yard workers, acknowledges that Lawrence complained to him about the harassment before Lawrence was fired. According to the employer&#;s policy, the yard lead was expected to report problems to the yard manager, who had authority to take disciplinary action against employees. Because the yard lead was responsible for referring Lawrence&#;s complaint to an appropriate official authorized to take corrective action, the employer had actual notice of the alleged harassment.[324]
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.[325]
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 harassing conduct in some way.326 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.[327]
Example 70: Employer Had Notice of Harassment. Susan was subjected to sex-based harassment by her coworker, Jim. Although Susan&#;s employer contends that it did not have notice of the conduct, evidence shows that Susan requested a schedule change when she was scheduled to work alone with Jim, and that Susan&#;s coworkers told her supervisor, Barb, that Susan wanted to avoid working with Jim. Also, Jim told Barb that he may have &#;done something or said something that [he] should not have to Susan.&#; When Barb asked Susan about working with Jim, Susan became teary and red and said, &#;I can&#;t talk about it.&#; Barb responded by saying, &#;That&#;s good because I don&#;t want to know what happened.&#; Under the circumstances, Barb had enough information to suspect that Jim was harassing Susan. As Susan&#;s supervisor, Barb had the responsibility to take corrective action, if she had the authority, or to notify another official who did have the authority to take corrective action.[328]
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.[329]
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.&#;[330]
An employer has constructive notice of harassing conduct if, under the circumstances presented, a reasonable employer should know about the conduct.[331] 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.[332] An employer also may be deemed to have constructive notice of harassment if it did not have reasonable procedures for reporting harassment.[333]
Example 71: 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 the dealership&#;s service department. The service department is managed by Aseel, who is onsite in the service department all day when he supervises a team of five mechanics. At least once per day while Joe is in the service department, a mechanic, Tanner, yells at Joe across the room, calling him &#;wetback&#; and &#;sp*c,&#; among other epithets. The other mechanics sometimes talk amongst themselves about how Tanner&#;s conduct toward Joe never stops in the service department, that Tanner seems to enjoy having an audience, and how they are surprised that Tanner&#;s conduct continues even after their employer provided anti-harassment training to all of the employees working at the dealership. Based on this evidence, the employer had constructive notice of the hostile work environment because Service Manager Aseel knew or should have known about Tanner&#;s conduct.[334]
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.
An investigation is prompt[335] if it is conducted reasonably soon after the employee complains or the employer otherwise has notice of possible harassment. Clearly, an employer that opens an investigation into a complaint one day after it is made has acted promptly.336 By contrast, an employer that waits two months to open an investigation, absent any mitigating facts, very likely has not acted promptly.337 In many 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.338 For example, when faced with allegations of physical touching, an employer that, without explanation, does nothing for two weeks likely has not acted promptly.339
An investigation is adequate if it is sufficiently thorough to &#;arrive at a reasonably fair estimate of truth.&#;[340] 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 investigator to make credibility assessments to determine whether the alleged harassment in fact occurred.[341] Accordingly, whoever conducts the investigation should be well-trained in the skills required for interviewing witnesses and evaluating credibility.
Example 72: 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 and has no experience conducting harassment investigations. The investigator meets with George and Phil individually for about ten minutes, and asks only a few perfunctory questions. From these interviews, the investigator issues a single-page memorandum concluding, without further explanation, that there is no basis for finding that George was harassed. Based on these facts, the employer has not conducted an adequate investigation.342
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.[343]
Employers should retain records of all harassment complaints and investigations.[344] 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.[345] 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, both during and after the employer&#;s investigation.[346]
Corrective action that leaves the complainant worse off could constitute unlawful retaliation.347 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 retaliation.
To avoid liability, an employer must take corrective action that is &#;reasonably calculated to prevent further harassment&#; under the particular circumstances at that time.[348] Corrective action should be designed to stop the harassment and prevent it from continuing.[349] The reasonableness of the employer&#;s corrective action depends on the particular facts and circumstances at the time the action is taken.[350]
Considerations that will be relevant in evaluating the reasonableness of an employer&#;s corrective action include the following:
6) 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.[361] 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.362
Example 73: 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 teams, 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 74: 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 checks, directs them to pay their bills, 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.
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 to investigate harassment claims, and 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&#;367 and therefore fired him.
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 in all circumstances,368 including, for instance, if it appears likely that the harassment was severe[369] or if employees other than the complainant are vulnerable.[370] One mechanism to help minimize such conflicts could be for the employer to set up an informational line or website that allows employees to ask questions or share concerns about harassment anonymously.[371] 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 an employment agency to work for a client, then both the agency and the client may jointly employ the individual during the period when the individual works for the client.[372] If a worker is jointly employed by two or more employers, then each of the worker&#;s employers is responsible for taking corrective action to address any alleged harassment about which it has notice.[373] An employer has the same responsibility to prevent and correct harassment of non-direct hire employees as harassment of permanent employees.374 Therefore, under such circumstances, if the worker complains about harassment to both the client and the employment agency, then both entities would be responsible for taking corrective action.375 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 situation.376
As with an employer, an employment agency is responsible for taking reasonable corrective action within its own control. This is true regardless of whether the 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 75: Temporary Agency Takes Adequate Corrective Action, But Client Does Not. Yousef is a Muslim software engineer of Arab American heritage. He is assigned by an employment agency to work for a technology company on a software development project. The evidence establishes that the agency and technology company are joint employers of Yousef. Soon after Yousef starts working, Eddie, one of his coworkers, begins making frequent comments about his religion and ethnicity. For example, Eddie says that Middle Easterners and Muslims &#;prefer to solve problems with their guns and bombs, rather than their brains.&#; He also says that &#;the Middle East&#;s number one export is terrorism,&#; and recommends that Yousef&#;s work be reviewed carefully &#;to make sure he&#;s not embedding bugs on behalf of terrorists.&#; Yousef tells Eddie to stop, but he refuses. Yousef complains to the employment 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 employment agency promptly reassigns Yousef to a different client at the same pay rate.377 The employment 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 agency took appropriate corrective action as to Yousef, while the technology company did not.
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 many, or possibly all, of 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.[378] In such a situation, evidence of widespread race-based harassment could be used to establish that Black employees working on that shift were individually subjected to an objectively hostile work environment. Similarly, evidence that a group of individuals with intellectual disabilities had been physically abused, financially exploited, and subjected to verbal abuse including frequently being called &#;ret*rded,&#; &#;dumb ass,&#; and &#;stupid&#;379 could establish a disability-based hostile work environment for all of the impacted individuals.
Example 76: Same Evidence of Racial Harassment Establishes Objectively Hostile Work Environment for Multiple Employees. A group of five Black correctional officers, who are the only Black officers on their shift, experienced racial mistreatment 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. This conduct occurred regularly, despite the Black officers&#; repeated objections. Although none of the Black officers were personally subjected to every harassing incident, they each were subjected to some of the similar conduct because the harassers treated them as a cohesive group. Further, each became aware of harassment experienced by the others, even if they were not present when every discriminatory comment was made. Based on these facts, given the totality of circumstances, each of the Black officers was subjected to an objectively hostile work environment based on race.[380]
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 engage in or tolerate harassment creating a hostile work environment.[381] An allegation of a pattern or practice of harassment focuses on the &#;landscape of the total work environment, rather than the subjective experiences of each individual claimant&#;[382]&#;in other words, whether the work environment, as a whole, was hostile.[383] 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 it was the employer&#;s standard operating procedure to subject Thai nationals employed on the defendant&#;s farms to a hostile work environment.[384]
An employer&#;s efforts to prevent or correct systemic harassment must be adequate to fully address the nature and scope of the harassment the employer knows (or reasonably should know) was or is occurring. For example, an employer cannot simply correct the harassment as to a particular subset of individuals known to be affected. 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.[385]
Example 77: Evidence Establishes Pattern or Practice of Sex Harassment. Zoe alleges that she has been subjected to ongoing sex-based harassment at the soap manufacturing plant where she works. An investigation reveals that female employees throughout the same 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 the employer 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 the employer&#;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 requiring appropriate plant-wide corrective action. Based on these facts, the employer has subjected female employees at the plant to a pattern or practice of sexual harassment.[386]
A. EEOC Harassment Home Page: https://www.eeoc.gov/harassment
B. EEOC Sexual Harassment Home Page: https://www.eeoc.gov/sexual-harassment
C. EEOC Select Task Force on the Study of Harassment in the Workplace: https://www.eeoc.gov/eeoc-select-task-force-study-harassment-workplace
D. Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (), https://www.eeoc.gov/june--report-co-chairs-select-task-force-study-harassment-workplace
E. Promising Practices for Preventing Harassment: https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment
F. Promising Practices for Preventing Harassment in the Federal Sector: https://www.eeoc.gov/federal-sector/reports/promising-practices-preventing-harassment-federal-sector
G. EEOC Retaliation Home Page: https://www.eeoc.gov/retaliation
H. Enforcement Guidance on Retaliation and Related Issues: https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues
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