Table Of Content
145 See, e.g., Williams v. Herron, 687 F.3d 971, 975 (8th Cir. 2012) (concluding that the complainant adequately communicated to the harasser, with whom she had been having a sexual relationship, that his conduct was no longer welcome). 137 See, e.g., Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 904 (7th Cir. 2018) (holding that, because a reasonable jury could find that the conduct was unwelcome, there was an issue of material fact regarding subjective hostility); Kokinchak v. Postmaster Gen. of the U.S, 677 F.
A. Harassment Affecting Multiple Complainants
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2d 1254, 1269 n.22 (M.D. Ala. 2001) (noting “mid-level supervisors may have blocked Plaintiffs’ attempts to contact higher-ranking supervisors” thereby rendering the complaint process inaccessible and deficient); cf. Ocheltree, 335 F.3d at 334 (finding the employer’s “open door” reporting policy deficient where the two points of contact were either always unavailable or refused to speak with the employee when the employee attempted to complain); Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1298 (11th Cir. 2000) (noting the employer’s policy designated several additional company representatives to whom an employee could complain regarding harassment and that these individuals were accessible to employees). Accessibility of points of contact can also be relevant when addressing the second prong of the Faragher-Ellerth affirmative defense, which considers whether the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. See infra sectionIV.C.2.b.ii and note 297.
Enforcement Guidance on Harassment in the Workplace
As a form of sex discrimination, discrimination on the basis of sexual orientation or gender identity therefore violates section 703(a)(1) on the same terms as any other form of sex discrimination, including failing or refusing to hire, or otherwise discriminating against an individual with respect to compensation, terms, conditions, or privileges of employment. Any other interpretation would be inconsistent with the statutory text and with Bostock, and would introduce an inconsistent and textually unsupported asymmetry under which an employee could not be terminated because of their sexual orientation or gender identity but could be harassed or otherwise discriminated against in the terms and conditions of employment based on those same characteristics. Corrective action in response to a harassment complaint must be taken without regard to the complainant’s protected characteristics.
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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. 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 email 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. 333 Chapman v. Oakland Living Ctr., 48 F.4th 222, 232 (4th Cir. 2022) (concluding that a reasonable jury could find that the employer had constructive notice of harassment where the employer failed to produce evidence that it had a harassment reporting policy when the harassment occurred and, although the employer had an employee handbook, the only copy was kept in a desk where the plaintiff may never have seen it).
Support
186 Id. at 81-82; see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (en banc) (stating that the analysis requires proceeding with “‘[c]ommon sense, and an appropriate sensitivity to social context,’ to distinguish between general office vulgarity and the ‘conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive’” (quoting Oncale, 523 U.S. at 82)); Hood v. Nat’l R.R. Passenger Corp., 72 F. 3d 888, 893 (N.D. Ill. 2014) (stating that the joking manner in which the challenged comments were made was a relevant consideration in evaluating the severity of Hispanic employees’ use of “gringo” to refer to the White complainant). 140 See, e.g., Wallace v. Performance Contractors, Inc., 57 F.4th 209, 223 (5th Cir. 2023) (concluding that the plaintiff presented sufficient evidence that she subjectively viewed the alleged harassment as hostile where she “complained about the harassment, reported it to her supervisors, and suffered psychological harm”); EEOC v. Mgmt.
C. Applying the Appropriate Standard of Liability in a Hostile Work Environment Case
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. 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. 369 Some courts have suggested that it may be lawful to honor such a request in some circumstances, but that it may be necessary to take corrective action, despite a complainant’s wishes, if harassment is severe. 270 See, e.g., Agusty-Reyes v. Dep’t of Educ., 601 F.3d 45, 55 (1st Cir. 2010) (holding that a reasonable jury could conclude that the failure to disseminate the harassment policy and complaint procedure precluded the employer from establishing the first prong of the defense); Ortiz v. Sch.
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. 359 See Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (enumerating factors to be assessed in evaluating the reasonableness of remedial measures and listing potential corrective actions).
Sheriff’s Off., 743 F.3d 726, 754 (10th Cir. 2014) (noting that the employee’s response to harassment was not necessarily unreasonable even if “20/20 hindsight” suggests that she “could have avoided” some of the harm). Hall Co., 199 F.3d 925, 935 (7th Cir. 1999) (stating that the employee’s “unreasonable foot-dragging will result in at least a partial reduction of damages, and may completely foreclose liability”). 253 As discussed in section IV.A, supra, an employer also may be liable for harassment by a supervisor pursuant to negligence principles.
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. 272 EEOC v. Spud Seller, Inc., 899 F. 2d 1081, 1095 (D. Colo. 2012) (determining a trial was required on the issue of whether the employer, which employed some individuals who spoke only Spanish, could satisfy the Faragher-Ellerth affirmative defense where the employer’s handbook contained an anti-harassment policy in English, but there was no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish-speaking employees). 184 This example is adapted from the facts in Broderick v. Ruder, 685 F. 1269, 1278 (D.D.C. 1988) (holding that the plaintiff stated a prima facie case of sexual harassment based on evidence that managers harassed female employees by bestowing preferential treatment on those who submitted to sexual advances).
277 See Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005) (describing a prompt investigation as a “hallmark of reasonable corrective action”). 261 See Ellerth, 524 U.S. at 754 (analyzing harassment claim as a hostile work environment claim because it involved only unfulfilled threats); Henthorn v. Capitol Commc’ns, Inc., 359 F.3d 1021, 1027 (8th Cir. 2004) (analyzing an unfulfilled implied threat as a factor in determining whether the plaintiff was subjected to a hostile work environment). 226 See Abbt v. City of Hous., 28 F.4th 601, 609 (5th Cir. 2022) (concluding that a reasonable jury could find that the plaintiff, a firefighter, was subjected to a sex-based hostile work environment arising from her colleagues’ repeated viewing of a private, nude, intimate video that she had made for her husband). 221 See Blakey v. Cont’l Airlines, Inc., 751 A.2d 538, 543 (N.J. 2000) (concluding that, although the electronic bulletin board did not have a physical location at the employee’s worksite, evidence might show it was so closely related to the workplace environment and beneficial to the employer that continuation of harassment on it should be regarded as occurring in the workplace).
For a discussion of when vicarious liability applies, refer to section IV.B.2, supra. Hosp. of Racine, Inc., 666 F.3d 422, 436 (7th Cir. 2012) (stating that a two-month delay in initiating an investigation was not the type of response “reasonably likely to prevent the harassment from recurring” (quoting Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005))). 296 See id. (referencing a proven, effective complaint process that was available “without undue risk or expense”). 265 Id. at 765 (emphasis added); Faragher, 524 U.S. at 807 (emphasis added); see also, e.g., Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001) (“Both elements must be satisfied for the defendant-employer to avoid liability, and the defendant bears the burden of proof on both elements.”). 200 Although evidence of unwelcomeness may be relevant, the Commission does not believe that a plaintiff needs to prove “unwelcomeness” as a separate element of the prima facie case.
71 See, e.g., Barrett, 556 F.3d at 513 (concluding that the district court erred in rejecting two White employees’ claim of associational discrimination on the grounds that they failed to show the “requisite degree of association” with Black coworkers and explaining that the degree of association is irrelevant in assessing whether a plaintiff has a valid claim of associational discrimination (citing Drake v. 3M, 134 F.3d 878, 884 (7th Cir. 1998)); cf. Kengerski v. Harper, 6 F.4th 531, , 539 (3d Cir. 2021) (noting that associational discrimination is not limited to close or substantial relationships and ruling that the complainant could pursue his retaliation claim for making a complaint regarding harassment based on his association with his biracial grand-niece). 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. 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.
The major issues raised in the comments and the Commission’s responses are listed, summarized, and addressed below. An en banc Eleventh Circuit overruled its precedent that would automatically vacate a criminal sentence exceeding judicial guidelines if the district court imposed the sentence without an explanation, the court said Monday. 353 See Vance, 570 U.S. at ; Doe v. Oberweis Dairy, 456 F.3d 704, 717 (7th Cir. 2006).
1486, 1525 (M.D. Fla. 1991) (stating that the fact that some women did not find the conduct offensive did not mean that the conduct was not objectively hostile). 77 E.g., Ahmed v. Astoria Bank, 690 F. App’x 49, 51 (2d Cir. 2017) (holding that a reasonable jury could find that the plaintiff was subjected to unlawful harassment based on race, national origin, and religion, based in part on a senior supervisor’s comments that she should remove her hijab, which he called a “rag,” and his comment on September 11, 2013, that the plaintiff and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything”). In some circumstances, an employee may report harassment but ask that the employer keep the matter confidential and take no action.
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