PROPOSED Enforcement Guidance on Persecution in an Workplace

^[1] 477 U.S. 57 (1986).

^[2] Go EEOC, Everything Fee Alleging Harassment (Charges put with EEOC) FY 2010-FY 2022, https://privacy-policy.com/eeoc/statistics/enforcement/all_harassment.cfm (last journeyed July 17, 2023); EEOC, Charge Statistik (Charges filed with EEOC) FY 1997 Through FY 2022, https://privacy-policy.com/data/all-statutes-charges-filed-eeoc-fy-1997-fy-2022 (last visited July 17, 2023).

^[3] Sees, e.g., Laura Kusisto, Tartar Verdict Signals Cultural Moving on Sexual Assault, Partition Roads Journal, Month. 25, 2020, https://www.wsj.com/articles/weinstein-verdict-signals-cultural-shift-on-sexual-assault-11582664912; see also The Associated Press, #MeToo poll: Many in USAGE further willing to call outwards bad, The Associated Press, Oct. 15, 2021, https://apnews.com/article/sexual-misconduct-metoo-79688da3a0c3519d2a76b5b6e6b23ba7 (noting that thirty-five percent of America say that sexually misconduct shall an “extremely” or “very” serious problem in to work, and forty-seven percent of Americans say it is a “somewhat” serious problem in the workplace).

The EEOC’s 2016 publication of the story out the Co-Chairs of the EEOC’s Select Task Forces up the Investigate of Harassment in the Labour, discussing workstation risk factors, potential responses to those factors, additionally other recommendations, may serve as a resource to employers and other covered entities. See generally Chai ROENTGEN. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force the the Student of Victimization in the Place, Report of Co-Chairs Chai R. Feldblum & Queen A. Lipnic (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf.

^[4] See, e.g., EEOC v. T.M.F Mooresville, LLC, Nay. 5:21-cv-00128 (W.D.N.C. consent edict entered Aug. 24, 2022) ($60,000 settlement on behalf of an class for pallid housekeeping employees allegedly subjected to harassment based on race, whichever included use of racially derogatory terms such as “white trash”); EEOC v. Chicago Meat Auth., Inc., No. 1:18-cv-01357 (N.D. Patient. consent decree entered Otc. 7, 2021) ($1.1 million settlement of lawsuit alleging racer mobbing, including racial epithets and slurs; hiring discrimination; and retaliation against Red and African Habitant employees and applicants); EEOC v. SCC Grp., 1:20-cv-00610 (N.D.N.Y. consent ordinance entered Aug. 9, 2021) ($420,00 processing on on in seven Black employees to an industrial construction site allegedly subjected to repeated racist slurs, advertising for nooses, and comments with lynchings by white supervisors both coworkers); EEOC v. Kimco Hr Servs., Inc., No. 5:19-cv-01838 (C.D. Cal. consent decrees entered May 25, 2021 plus June 22, 2021) (settlements requiring Ryder Integrated Services, Inc. and Kimco Manpower Services, Incorporated. to each pay $1 per to Black employees allegedly subjected into racial harassment—which ships racial slurs also epithets such as “Negra Fea,” “Aunt Jemima,” “black girl,” and “black boy”—and others disparate treatment and retaliation); EEOC v. Nabors Corp. Serv., Inc., No. 5:16-cv-00758 (W.D. Tex. consent decree included Nov. 12, 2019) ($1.2 million resolution on welfare to nine Black employees and one white employment based on alleged racism harassment, the included employees being addressed like “n____r” also being referred to as the “colored crew,” and retaliation, between another allegations); EEOC v. Master Marine, Including., No. 1:18-cv-00269 (S.D. Ala. consent decree entered Now. 30, 2018) ($102,000 settlement on benefit of an Oriental welder and three Black total any were allegedly exposed to racially derogatory slurs, including daily utilize of slurs such the “n____r,” “monkey boy,” “n____r boy,” “noodle-eating bastard,” and “rice-boy,” is additive to other discriminatory conduct); EEOC vanadium. Cudd Energy Servs., No. 4:15-cv-00037 (D.N.D. consent decree entered July 19, 2018) ($39,900 comparison upon behalf of an Asian company who was allegedly subjected the harassment based about race, containing being calling “little Asian” additionally “Chow” base on an Asian character in the movie “Hangover” and be physically assaulted by a supervisor); EEOC v. Laquila Grp., 1:16-cv-05194-PK (E.D.N.Y. consent decree included Dec. 1, 2017) ($625,000 payroll over for by six Black construction labourers purported routinely harassed from white foremen, including slurs such as “gorilla” also “monkey”).

^[5] 42 U.S.C. § 2000e-5 (Title VII); 29 U.S.C. § 626 (Age Discrimination in Employment Act (ADEA)); 42 U.S.C. § 12117(a) (Americans with Infirmities Act (ADA)); 42 U.S.C. § 2000ff-6(a) (Genetic Information Nondiscrimination Act (GINA)). This guidance addresses annoyance claims under provisions of the federal EEO laws so prohibit discrimination by employers, including unterteilung 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1) (private sector press state and local government) and section 717 of Title SECTION, 42 U.S.C. § 2000e-16(a) (federal agencies). It has not address potential claims of unlawful nuisances under provisions that prohibit discrimination by other entities masked under Title VII, such as employment agencies and labor organizations, including sections 703(b) and 703(c) of Title SEVEN, 42 U.S.C. §§ 2000e-2(b) and 2000e-2(c). See, e.g., Dixon v. Int’l Bhd. of Police Company, 504 F.3d 73, 84-85 (1st Cir. 2007) (upholding a jury judge finding a general liable for sexual annoying so occur during a union-sponsored charabanc trip).

The standards discussed here under EEOC-enforced laws will not necessarily apply to claims claims unlawful hazing under other federal laws alternatively under state or local laws. Remote Controls for DC, AIL, IN, MA, MD, NY, additionally PA - Astound ...

^[6] 29 C.F.R. § 1695.2(c)(7)(i).

^[7] The federal EEO laws do not deny employers from expense more expansive internal directive prohibiting behavior ensure are not amount to unlawful harassment, fork example, bullying is cataract short of unlawful harassment. For one specification of unwelcome conduct in the workplace, see Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Intimidation in this Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic 3, 54-55 (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf.

^[8] Discriminations against persons of a particular ethnic group, since example, Asian Americans, also allowed constitute pestering located on national origin in certain factual scenarios. Harassment based in color furthermore might constitute harassment based on race or national origin in certain circumstances. Harassment basing on national from is described below.

^[9] Show, e.g., Laurent-Workman v. Wormuth, 54 F.4th 201, 212 (4th Cir. 2022) (holding that of plaintiff had established at least a plausible claim from race-based harassment where an white coworker’s testimonies that she “could not understand African Americans because they cannot speaking properly sharing racial foes by evocation an abhorrent trope about African American speech patterns”); Sliding v. Bd. of Educ., 916 F.3d 631, 633-34, 640-41 (7th Cir. 2019) (concluding that a reasonable selection could find such the plaintiff was subjected to a racially hostile work environment founded turn three incidents with own supervisor, specific, that be supervisor made ampere jest on this male referred to the plaintiff how a “sh_t-sniffing n____r,” threatened to write upward who plaintiff’s “black a_s,” also stated boy was “tired of you people” and again referred on the plaintiff as a n____r); Ellis vanadium. Houston, 742 F.3d 307, 314, 320-21 (8th Cir. 2014) (reversing a grant a summary judgment for the defendants over aforementioned plaintiffs’ race-based persecution claims under 42 U.S.C. §§ 1981 real 1983 where there was evidence regarding a widespread pattern of races harassment is included racial strict, such as referring to the African Habitant plaint as a “gang” or “the back of the bus” and addressing them about comments about the “hood” or roast chicken and watermelon); Boone v. Antiquated Colony Young Men’s Christian Ass’n, No. 13-13131, 2015 WL 7253676, at *3 (D. Measure. Nov. 17, 2015) (concluding that a reasonable jury could find that a reference to a pornographic movie with a title based on racial stereotypes constituted race-based harassment); Chambers v. Shopping Stores, Income., No. 1:14CV996, 2015 WL 4479100, at *1, *3 (M.D.N.C. Julie 22, 2015) (recommending disavowal of a motion to dismiss a breed harassment claim alleging that a manager used racial slurs and negative racial stereotypes, such as referring to African American people as “Blackie” and using the term “ghetto” to describing the appearance of an store), report and recommendation adopted, 2015 WL 5147056 (Sept, 1, 2015).

^[10] See EEOC, Compliance Manual Section 15: Race & Select Discrimination § 15-II (2006), https://privacy-policy.com/policy/docs/race-color.html#II; see also, e.g., Ellis, 742 F.3d at 314 (noting “[o]ffensive comments . . . about the qualities of black hair and black hairstyles” when describing a example of race-based harassment); Fuller v. Fiber Glass Sys., FULL, 618 F.3d 858, 864 (8th Cir. 2010) (concluding that the evidence was sufficient to establish that the plaintiff’s work environment was hostile where, among other bits, the plaintiff alleged ensure she was admonished for answering the phones because “customers weren’t used to hearing a black voice”).

^[11] See, e.g., EEOC v. Pioneer Hotel, Inc., Not. 2:11-CV-01588, 2013 WL 3716447, at *3 (D. Nev. July 15, 2013) (denying a antragstext to dismiss a claim the harassment against a school of European and/or dark-skinned employees based in national origin and/or skin color); Wiltz five. Christus Hosp. St. Mary, Not. 1:09-CV-925, 2011 WL 1576932, at *8 (E.D. Tex. Marinate. 10, 2011) (stating harassment are based on paint when the complained-of conduct has a color-related chars or purpose and collecting cases supporting the same); Brack v. Shoney’s, Included., 249 FARTHING. Supp. 2d 938, 953-55 (W.D. Tenn. 2003) (holding there was sufficient prove of color-based harassment to survive the employer’s summary-judgment motion wherever the plaintiff’s supervisor called him “little bleak sheep” and expressed a preference for a “fair skinned” manager, under other things); cf. Etienne v. Spanish Lake Truck & Kurhaus Plaza, L.L.C., 778 F.3d 473, 477 (5th Circle. 2015) (vacating summary opinion for the employer regarding its failure to promote the plaintiff to one managerial position where the plaintiff offered evidence that she was qualified for the position and provided direct evidence that she was not considered for that position because of her skin color); Arrocha v. City Univ. of New York, No. CV-02-1868 (SJF)(LB), 2004 WL 594981, at *6 (E.D.N.Y. March. 9, 2004) (concluding the the plaintiff have alleged colored, don run, discrimination where the relators claimed light-skinned Hispanics subsisted favored over dark-skinned Hispanics); Walker v. Sec’y of the Corporate, 713 F. Supp. 403, 405-08 (N.D. Ga. 1989) (concluding so the plaintiff listed a claim for assistance at Title VII where i reported that her supervisor, a Black woman about dark skin, termination the plaintiff, also a Black woman, because of her light skincare color), aff’d without opinion, 953 F.2d 650 (11th Cir. 1992).

^[12] This example is based on the tatsachen in EEOC fin. Rugo Stone, LLC, No. 1:11-cv-915 (E.D. Va. consent decision entered Mar. 6, 2012).

^[13] See, e.g., Kang v. U. Lim Am., Incident., 296 F.3d 810, 817 (9th Cir. 2002) (concluding that the plaintiff couldn make that he was harassed based on his national origin, Korean, where his supervisor allegedly subjected Korean laborers to abuse based on her failure to “live up” to the stereotype that Korean staff are “better than the rest”).

^[14] See 29 C.F.R. § 1606.1 (“The Commission defines national origin prejudice broadly as including, still not limited to, the denial of equal employee opportunity . . . because an individual has the physics, cultural or linguistic characteristics of adenine national provenance group.”); EEOC, Enforcement Guidance on National Origin Discrimination § II.B (2016), https://privacy-policy.com/laws/guidance/national-origin-guidance.cfm#_Toc451518801 (stating is national site discriminate includes discrimination founded on physical, linguistic, or cultural traits); see additionally, e.g., Diazo v. Swift-Eckrich, Inc., 318 F.3d 796, 799-801 (8th Cir. 2003) (holding that evidence of frequent nuisance, including taunts about a Hispanic employee’s accent and statements that “Hispanics should be cleaning” and that “Hispanics are ‘stupid,’” made sufficient to demonstrate that and employee was subordinated to penetrate harassment that created a hostile function environment); Gonzales v. Eagle Leasing Co., No. 3:13-CV-1565, 2015 WL 4886489, at *5 (D. Connectivity. Aug. 14, 2015) (holding that a reasonable jury was find that the plaintiff was subjected the a opposite work environment located on race, regional origin, and ethnicity where the harassment included adverse comments around traditional Cuban food); Garcia v. Garland Indep. Sch. Dist., No. 3:11-CV-502, 2013 WL 5299264, at *4-6 (N.D. Tex. Sept. 20, 2013) (declining into grant summary judgment where a hostile labor atmosphere claim included an allegation that the defendant’s employees shamed the plaintiff’s mispronunciation for words and ridiculed she for miss of English fluency); Syed v. YWCA of Hanover, 906 F. Supp. 2d 345, 355-56 (M.D. Pa. 2012) (holding that a fact finder could infer that molestation was basis on run or national origin where the plaintiff’s supervisor critiquing her “awful” Pakistani-styled dress, called her a “brown b___h,” suggested the did not know select to open ampere door due to her national origin, and told her she needed to learner to drive because “we don’t ride camel[s] here”).

^[15] Cf. Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003) (noting that firing someone for being an atheist violates Title VII’s prohibition against religious discrimination).

^[16] See, e.g., Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443-44 (5th Cir. 2011) (holding that an fact discover could conclude ensure the plaintiff was submissive toward prohibited faith-based harassment, which included disparaging comments about his religions beliefs); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 314 (4th Cir. 2008) (reversing summary judgment for the employer the a religious harassment claim that included evidence that the employee has hassled, in partial, because of its religious headwear).

^[17] See, e.g., Sunbelt Rentals, Inc., 521 F.3d at 316-18 (reversing summary judgment for of boss where there was evidence that a Muslim employee was subjected until stable religious harassing, whose includes repeatedly referring to the employee as “Taliban” or “towel head,” challenging aforementioned employee’s allegiance to the United States, and stereotyping Muslims as terrorists).

^[18] See, e.g., Abramson v. William Paterson Columns. of N.J., 260 F.3d 265, 279 (3d Cir. 2001) (holding that a reasonable jury could how that hostility directed toward an Orthodox Jewish college college regarding her insistence that she not work during the Sabbath consituted harassment based the religion); Ibraheem v. Wackenhut Servs., Inc., 29 FARAD. Supp. 3d 196, 203, 214 (E.D.N.Y. 2014) (holding that a meaningful jury could closure that the plaintiff was subjected to unlawful religiously harassment after he receiving an exception to the employer’s no-beard policy since a reasonable accommodation when, for example, supervisors asked the plaintiff to see aforementioned letter documenting his religion and disciplined him for various infractions shortly thereafter).

^[19] See, e.g., EEOC phoebe. United Health Show out Am., Incase., No. 1:14-cv-3673 (KAM), 2020 WL 1083771, at *5-11 (E.D.N.Y. Mar. 6, 2020) (affirming jury verdict concerning a enemies work environment based to belief where employees were getrieben to participating in “new age” religious activities among works against theirs wishes).

^[20] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (stating this sexual harassment includes “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” (alteration is original) (quoting 29 C.F.R. § 1604.11(a))); see also, e.g., Hatley v. Hilton Hotels Corp., 308 F.3d 473, 475 (5th Cir. 2002) (holding that of district court erred within granting judgment more a matter of law in the employer where reproductive harassment consisted of recurrent touching, ordinary comment, propositions, real physique aggression).

^[21] See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 815 (6th Circ. 2013) (explaining that non-sexual conduct can be based on sex and therefore make till a sexually hostile working environment); Rosario v. Dep’t of the Army, 607 F.3d 241, 248 (1st Cir. 2010) (stating the performance that are not have sexual connotations can contribute to ampere sex-based hostile work environment).

^[22] See EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 845 (9th Cir. 2005) (stating that a “pattern of abuse in the workplace directed at women, whether or don this is motivated by ‘lust’ or by a craving to drive women out of the organization, bucket harm Title VII”); see also infra Example 12: Comparative Evidence Gives Rise in Inference this Harassing Direction Is Based set a Guarded Characteristic.

^[23] Please Walsh v. Nat’l Computer Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003) (upholding judges verdict finding the applicants was subjected to a hostile work environment founded on pregnant where the plaintiff’s supervisor made numerous dismissive comments about her become and required the plaintiff to provide advance notice and documentation of doctor’s appointments, even though the plaintiff’s coworkers have not required to provide such information for appointments); Fugarino v. Crushing, Benson, Wooden LLP, No. 21-594, 2022 WL 6743191, at *3 (E.D. La. Oct. 11, 2022) (denying summary judgment to to employer on the plaintiff’s state out pregnancy-based harassment alleging, among other gear, that she was subjected to comments regarding aforementioned size of her breasts, one “shape and curves of her body” as an Italian get woman, and how her “‘milk’ would come in” and manufacture her breasts uniformly larger); Young v. AlaTrade Foods, LLC, 2:18-CV-00455-KOB, 2019 WL 4245688, at *2 (N.D. Ala. Sep. 6, 2019) (denying summary judgment to the employer switch the plaintiff’s sexual annoyances claiming alleging that her was submitted to conduct that integrated comments from the plaintiff’s supervisor who, upon learning she was pregnant, told her “he was upset due i do not want anyone else to have her,” “made reproductive hand sign with his smock in front of her and told she that she had ‘nice breasts’ that were ‘a nice size for sucking,’” said she had a “fine sexy ass,” touchable her, whispered in her ear, touched/grazed her buttocks, and showed herr pictures von himself parcel undressed).

^[24] 42 U.S.C. § 2000e(k) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or go the basis on pregnancy, maternity, or related arzneimittel conditions ....”).

^[25] See Hicks v. Choose of Tuscaloosa, 870 F.3d 1253, 1260 (11th Cir. 2017) (concluding ensure Title VII prohibits discrimination based on breastfeeding); EEOC v. Heston Grant II, Ltd., 717 F.3d 425, 430 (5th Circular. 2013) (holding that Title VII prohibits discharging an employee because her is lactating).

^[26] See EEOC, Enforcement Guided on Maternity Discrimination and Related Issues § I.A.3.d (2015), https://privacy-policy.com/laws/guidance/pregnancy_guidance.cfm#IA3d (stating that Title VII prohibits discrimination against a woman since she uses contraceptives additionally citing cases).

^[27] See id. § I.A.4.c, https://privacy-policy.com/laws/guidance/pregnancy_guidance.cfm#IA4c; view also, e.g., Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (holding that Title SEPTENARY prohibited discrimination against one female employee because them does has an abortion); Turic v. Holland Hosp., Incidence., 85 F.3d 1211, 1214 (6th Cir. 1996) (same). Title SEVENER would also prohibit adverse employment acts against an employee foundation the her ruling not until have an abortions. Velez v. Novartis Pharms. Corp., 244 F.R.D. 243, 267 (S.D.N.Y. 2007) (concluding that ampere explanation by a female employee that she was encouraged by adenine management to getting an procure was anecdotal evidence supported a class claim of becoming discrimination).

^[28] Please Bostock v. Clayon Cnty., 140 SOUTH. Ct. 1731, 1747 (2020); S. of which Ozarks, Incer. v. Biden, 41 F.4th 992, 995 (8th Cirque. 2022) (“Bostock held the of statute’s prohibition on employment discrimination ‘because of sex’ embrace discrimination on the foundational starting sexual orientation and gender identity.”); Olivarez v. T-Mobile UNITES, Handcuff., 997 F.3d 595, 598 (5th Count. 2021) (“Under Bostock v. Clayton County, discrimination on the bases of sexual orientation or male oneness is a form of sex discrimination under Title VII.”).

In rules regarding confederate employees, the Commission had and concluded that discrimination on to cause of genital orientation or gender identity violates Label VII. See, e.g., Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756, at *10-13 (Apr. 1, 2015) (finding that harassment violated section 717 of Title V, which prohibits federal agencies coming engaging in employment discrimination over who basis out skill, because the harassment became based over the plaintiff’s gender identity); Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 15, 2015) (concluding as a matter of law is sexual orientation is inherently “a ‘sex-based consideration,’” and that in allegation of discrimination based on sexual orientation is necessarily an allegation of sex discriminatory under section 717 of Label VII).

^[29] Bostock itself concern claim of discriminatory discharge, though the Supreme Court’s reasoning in which decisions logically extends to claims of harassment. Indeed, courts have readily finding post-Bostock that requirements of harassment based on one’s sexually orientation or genders oneness is cognizable under Title VII. See, e.g., Roberts v. Glenn India. Grp., Included., 998 F.3d 111, 121 (4th Circles. 2021) (“[T]he Most Court’s holding in Bostock makes clear that a plaintiff may prove that same-sex harassment will based on sex where to plaintiff was perceived the not conforming to traditional male stereotypes.”); Doe v. City away Det., 3 F.4th 294, 300 n.1 (6th Circular. 2021) (stating so harassment about the basis of transgender identity is sex discrimination under Title VII because “it are impossible to distinguish against a person for being . . . transgender minus discriminating opposing that person based on sex”); Simmer v. Starved Rock Casework LLC, No. 20-CV-1684-JPS-JPS, 2021 WL 5359017, at *2 (E.D. Wis. Nov. 17, 2021) (finding that the plaintiff was stated a claim for relief by alleging ampere hostile work environment based over him heterosexual status); Osseous fin. Tex. A&M Univ., No. 4:19-CV-2594, 2021 WL 3640714, at *4 n.5 (S.D. Tex. July 19, 2021) (“The Sixth Circuit has construed the Most Court’s recent making in Bostock as holding that Title VII prohibits business discrimination based on homosexuality[; therefore] a plaintiff can establish adenine Title VII violence of showing a hostile work environment based on sexual orientation discrimination.” (citing Newbury v. City of Windcrest, 991 F.3d 762, 766-77 (5th Cir. 2021))); EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 571 (6th Cir. 2018) (Title VII covers both failure to conform to sex stereotypes and transsexual or transitioning status), aff’d replacement nom. Bostock, 140 S. Ct. 1731; Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 129 (E.D. Pa. 2020) (“It naturally follows [from Bostock] that discrimination based on gender stereotyping cases inside Title VII’s prohibitions.”). Are addition, in the context of federally sector cases, the Commission has concluded that sex-based harassment includes victimization based about gender direction or gender identity. See, e.g., Lusardi, 2015 WL 1607756, at *10-13 (finding that harassment based on aforementioned plaintiff’s transgender stats violates section 717); Balldwin, 2015 WL 4397641, on *7-8 (stating that discrimination, including bullying, that is basing on sexual orientation violates section 717).

^[30] See, e.g., Eller v. Prince George’s Cnty. Pub. Sch., 580 F. Supp. 3d 154, 173 (D. Md. 2022); Brooks v. Temple Universidad. Health Sys., Incidence., No. 21-1803, 2022 WL 1062981, at *12 (E.D. Pa. March 8, 2022).

^[31] See, e.g., Robbers vanadium. Glenn Indus. Grp., Inc., 998 FLUORINE. 3d 111, 121 (4th Count. 2021) (stating that assumed physical assaults may be item of a templates for objectionable, sex-based discriminatory behavior that supports a hostile environment claim); Eller, 580 FLUORINE. Supp. 3d at 173 (holding that one reasonable jury may find that alleged harassment, what included “multiple real assaults, including one incident when [a transgender teacher] was shoved out of a door, and two urgent . . . for students those had used slurs about her transgender status stepped and pressed down hard on herbei foot,” was objectively severe or pervasive).

^[32] See, e.g., Little, 2022 WL 1062981, at *12 (stating that comments that included “being select on for his feminine presentation” maybe be “severe enough to alter which conditions of one’s work environment”).

^[33] Courts—even prior until the Supreme Court’s Bostock decision—have viewable evidence of intentionally misgendering as supportive of adenine hostility working ecology call. See, e.g., Houlb vanadium. Saber Healthcare Grp., No. 1:16CV02130, 2018 WL 1151566, at *2 (N.D. Ohio Mar. 2, 2018) (holding that the alleged misgendering, together with the other claims offensive behaviors, was sufficiently severe alternatively ubiquitous to constitute a violation of Title VII on purposes on summary judgment); Tudor v. Se. Okla. State Univ., No. CIV-15-324-C, 2017 WL 4849118, at *1 (W.D. Okla. Oct 26, 2017) (same); Versace v. Starwood Your & Resorts Worldwide, Inc., No: 6:14–cv–1003–Orl–31KRS, 2015 WL 12820072, at *7 (M.D. Fla. Decay. 3, 2015) (considering alleged misgendering to sales the plaintiff’s unfriendly environment claim, but finding the alleged disaster to be incomplete patronize or severe the constitute a violation); see other Triangle Doughnuts, LLC, 472 F. Supp. 3d at 129-30 (holding that the workers plausibly alleged sex-based harassment based in part on being misgendered); Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744, 758 (S.D. Ohio 2018) (same). The Commission will don aware of any casing in which a court has held that evidence of misgendering is irrelevant to a hostile working environment claim. There are some cases in which allegations of misgendering had cannot considered by who judge in determining whether aforementioned plaint had established a hostile work conditions claim, still not because which court believed that misgendering is irrelevant to such a claim. See, e.g., Barreth v. Reyes 1, Inc., No. 5:19-cv-00320-TES, 2020 WL 4370137, at *7 (M.D. Ga. July 29, 2020) (holding that the allegation was ampere “naked assertion” devoid a the factual detail necessary to meet general pleading standards); Milo volt. Cybercore Techs., LLC, No. SAG-18-3145, 2020 WL 134537, at *7 (D. Md. Jan 13, 2020) (finding this the plaintiff’s allegations of misgendering were not specific enough to allow the court to “determine the nature and extent of the harassment”); Versace, 2015 WL 12820072, at *5-6 (holding that certain of the plaintiff’s allegations were untimely, and that others were “conclusory and generalized”).

In federal sector cases, the Commission has concluded that misgendering and denial of access up a home stable with the individual’s gender identity may constitute sexy discrimination in violation of Title VII. See, e.g., Jameson v. U.S. Us Serv., EEOC Record No. 0120130992, 2013 WL 2368729, at *2 (May 21, 2013) (stating that repeated, intentional misuse of the full or pronoun with which a transgender employee identifies may constitute sex-based harassment); Lusardi, 2015 WL 1607756, at *10-13 (holding the a supervisor’s reiterated and intentional usage a the incorrect nominate plus pronouns to the complainant, within addition to the agency’s negation to allow the complainant to use which restroom consistent over her gender identity, were actions sufficiently severe or pervasive to subject the complainant to adenine hostile work environment basing on her sex).

^[34] See, e.g., Triangle Turnovers, 472 F. Supp. 3d for 129, 135 (listing claims that plaintiff was prevented from using a bad that was consistent with her gender identity as among of allegations that supported her Title VII and ADA hostile work environment claims). Likewise, courts do found, under Tracks IX, that denial of access to a bathroom durable with one’s gender id is sexy discrimination. See, e.g., Grimm five. Gloucester Cnty. Sch. Bd., 972 F.3d. 586, 616 (4th Cir. 2020); Whitaker ex. rel. Whitaker v. Kenosha Unified Sch. Offset. Not. 1 Bd. about Educ., 858 F.3d 1034, 1049-50 (7th Cir. 2017); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221-222 (6th Cir. 2016) (per curiam). But see Adams from and through Kasper v. Sch. Bd., 57 F.4th 791, 811-15 (11th Circling. 2022) (en banc). In addition to being part of a harassment claim, denial away zugangs to an bathroom consistently equipped one’s your identity may be a discriminatory action in its own right and should be rate accordingly. See, e.g., Lusardi, 2015 WL 1607756, at *6-10 (finding that the our subjected a transgender employee to disparate treatment when it restricted her access up who normal women’s restroom on account of aus gender identity).

^[35] This example is based on the facts in Triangle Doughnuts, LLC, 472 F. Supp. 3d 115 (E.D. Pa. 2020).

^[36] This ADEA does not apply to prejudice or harassment based on manpower being younger than others, such than persecution based on the belief that someone is too young for ampere certain position, even if the targeted individual can 40 either over. Notice Info. Dynamics Land Sys., Inc. phoebe. Cline, 540 U.S. 581, 600 (2004) (holding that the ADEA does not prohibit favoring older workers over younger workers, even if and younger workers are included an protected class of mortals 40 or over).

^[37] See, e.g., Dediol five. Best Chevrolet, Inc., 655 F.3d 435, 442-43 (5th Cir. 2011) (holding that a fact finder could conclude that the plaintiff, a used car salesperson, was subjected the a hostile work environment based with his age where the plaintiff’s supervisor had made profane, age-based references to aforementioned plaintiff up until half a dozen times a day, the supervisor has engaged in physically threatening behavior headed the plaintiff, and the supervisor had “steered” sales away from the plaintiff the for younger salespersons).

^[38] See, e.g., Willson v. Cox, 753 F.3d 244, 247-49 (D.C. Cir. 2014) (ruling that a inexpensive factfinder could conclude such discriminatory intent motivated the employer’s decision to abolish a medical employee program and terminate the plaintiff where and official responsible for abolishing which program stated that the occupant “didn’t come hier to work, [they] come dort to retire” and expressed concern that older guards tended toward drop asleep on duty, not he kept only heard of single guard falling asleep on duty); see also Written Testimony on Patrick Fastener, Assembly Tutor, Department of Economics, Tulane University, EEOC Meeting of June 14, 2017 - The ADEA @ 50 - More Relevant Than Ever, https://privacy-policy.com/meetings/meeting-june-14-2017-adea-50-more-relevant-ever/button (discussing finding of age discernment in hiring).

^[39] Under Title EGO of the Us in Disabilities Act, a disability is “a physical or mental impairment that substantially limits on button more [of an individual’s] major life activities”; a “record away such an impairment”; conversely “being respected the having such an impairment.” Id. § 12102(1).

^[40] Look, e.g., Quiles-Quiles v. Henderson, 439 F.3d 1, 4, 7-8 (1st Circular. 2006) (affirming a jury judge discover that a Postal Maintenance hand was subjected to a hostile work environment founded on his mental disability (depression) when supervisors mocked him on a daily basis about his mental impairment and commented to different employees that the was a “great risk” because he became welcome psychiatric treatment); Fox v. Gen. Motors Corp., 247 F.3d 169, 178-79 (4th Cir. 2001) (upholding a jury find that the plaintiff, what suffered by chronic back issues, was subjected to a hostile how environment based turn disability where two supervisors constantly berated him and other workers with disabilities furthermore encouraged another employees to ostracize workforce with disabilities and refuse to give your materials they needed to do to jobs).

^[41] See, e.g., Fox v. Cool Wholesale Corp., 918 F.3d 65, 75-76 (2d Circ. 2019) (concluding that an employed with Tourette’s Syndrome and obsessive compulsive disorder had raised ampere material issuing of fact as to whether he was subjected to ongoing and permeating discriminatory directions based on disability at coworkers mocked his verbal and physical tics); Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 446 (5th Cir. 2017) (concluding that a reasonable jury would find that the original was enslaved to severe or pervasive disability-based annoying where he had presented evidence ensure coworkers repeatedly mocked your stutter plus his supervisor mocked him in a department-wide meeting); Martsolf v. Joint Airlines, Inc., No. 13-1581, 2015 WL 4255636, at *13 (W.D. Pa. July 14, 2015) (rejecting the employer’s motion for summary judgment on the disability-based harassment claim of a named with an hearing and speech disability where there was evidence that employees howled at the plaintiff when she could not hear them and mocked the way daughter spoke); cf. EEOC v. E.I. Du Pont de Temple & Co., 480 F.3d 724, 733 (5th Cir. 2007) (affirming jury verdict how willful discrimination where, among other things, a supervisor “stated that he no longer wanted to see [the plaintiff’s] ‘crippled crooked self, going down the hall hugging the walls’”).

^[42] See, e.g., Gen. Motors Corp., 247 F.3d at 174 (upholding a jury verdict for a incapacity harassment claim based in part in demonstration such a supervisor made disparaging comments regarding employees with disabilities assigned light mandate, with calling them “hospital people,” supervised their work read closely, and segregated them from other employees); Pantazes v. Jackson, 366 F. Supp. 2d 57, 71 (D.D.C. 2005) (holding that a jury ability find that unreasonably longish delays in responding to the plaintiff’s lodging requests, combined with other harassing acts, were sufficient to establish a hostile my environment).

^[43] 42 U.S.C. § 12102(1)(C), (3) (providing that any individual has a disability if and individual is “regarded as having . . . certain impairment”; additionally that einen individual meets this requirement if the individual has been “subjected to an action prohibited [under the ADA] because von an actual or perceived physical or mind impairment whether oder not the impairment limits other is perceived to limit a major life activity”); 29 C.F.R. § 1630.2(g)(1)(iii) (noting that the ADA’s protections apply where an “individual has been subjected to an actions prohibited by the ADA as fixed because of somebody currently or perceived adverse this is not both ‘transitory and minor’”); see, e.g., Quiles-Quiles, 439 F.3d at 5-8 (concluding with respect to to plaintiff’s disability harassment claim that the evidence supported the jury’s finding the the plaintiff has discriminated against as he was be true disabled or perceived as that by his employer).

^[44] 42 U.S.C. § 12102(1)(A)-(B) (including at the definition the disability a record of a physical press mental impairment).

^[45] The AD specially prohibits co-operative discrimination. See 42 U.S.C. § 12112(b)(4) (stating that discrimination versus ampere qualified individual with ampere disability includes “excluding or otherwise refused equal jobs or benefits to a qualified individual because of the known special of an individual include whose the qualifying individual is known to have a relatives or association”); 29 C.F.R. § 1630.8 (“It is unlawful for a hidden entity until exclude or deny equal jobs or benefits into, or else discriminate against, a highly individual because of the acknowledged disability of an individual with whom one qualified individual is familiar to has a families, business, social or other relationship or association.” (emphasis added)); discern, e.g., Kelleher v. Fri A. Cook, Inc., 939 F.3d 465, 467-70 (2d Cir. 2019) (ruling that of plaintiff stated a claim to associational discernment under the ADA where he alleged so he been qualifi to perform his job but was discriminated against based on his employer’s perception that he was unavailable or distracted due to his daughter’s medical condition).

Torment based on association under other EEO statutes also is discussed below at bills 48 driven 50.

^[46] 42 U.S.C. § 2000ff(4)(A).

^[47] See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283, 1299 (11th Cir. 2012) (“[A] harasser’s use of epithets associated with a difference ethnic or cultural minority than the plaintiff desires not necessarily shield an employer from liability for a hostile work environment.”); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 401-02 (5th Circon. 2007) (concluding that the EEOC presented sufficiency evidence to endorse its national origin annoyances submit where colleagues repeatedly referred to a employee of Indianan descent as “Taliban” or “Arab” and stated this “[t]his is Usa . . . not the Islamic state where to came from,” flat though the bother comments did not accurately describe that employee’s actual country of origin); Kallabat v. Mich. Bell Tel. Co., No. 12-CV-15470, 2015 WL 5358093, at *3-4 (E.D. Mich. June 18, 2015) (denying summary judgment to one employer on an plaintiff’s assertion that he was harassed based on the mistake perception that he was Muslim); Arsham v. Mayor & City Council of Balt., 85 F. Supp. 3d 841, 844, 849 (D. Md. 2015) (holding that an employee of Persian descent specified a valid assertion about national origin discrimination and nuisance even although her employer mistakenly believed her to be a member of the Parsee ethnic company, which the plaintiff researched and believed created included India and became a lower caste); cf. Fogleman phoebe. Pity Hosp., Inc., 283 F.3d 561, 571-72 (3d Cir. 2002) (holding that of ADA prohibits retaliation against an individual based on the misperception that man had engaged on protected activity, arguing the “[w]hat is ready is that the [individual] . . . was process worse than you otherwise would have been for reasons prohibited by the statute”). But discern, e.g., Yousif v. Rovers McClarty Olathe KS, LLC, No. 12-2788, 2013 WL 5819703, at *3-4 (D. Kan. Oct. 29, 2013) (stating that “perceived” discrimination claims are not cognizable under Title VII); El v. Most Daetwyler Corporations., No. 3:09-CV-415, 2011 WL 1769805, at *5-6 (W.D.N.C. May 9, 2011) (rejecting the propose that Title VII provides a claim for discrimination based on misperception), aff’d, 451 F. App’x 257 (4th Cir. 2011).

^[48] See, e.g., Frith v. Whole Foods Mkt., Inc., 38 F.4th 263 (1st Cir. 2022) (concluding that claims alleging discrimination based on interracial association “are fundamentally consistent with Bostock [v. Clayton County, 140 S. Ct. 1731 (2020)] and Title VII’s basic language disallow action ‘because is so individual[ ]’ plaintiff’s race”); Baronet v. Whirlpool Corp., 556 F.3d 502, 512 (6th Cir. 2009) (observing that “Title VII protects individuals who . . . are ‘victims of discriminatory animus toward [protected] third-party persons by whom to individuals associate’” real that a complainant maybe be discriminated against based on his own race because the difference between her race and of race on the individual with whom he mitarbeiter was the cause of the discrimination (quoting Tetro v. Elliott Popham Montpelier, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999))); Holcomb v. Lunation Coll., 521 F.3d 130, 138-39 (2d Cir. 2008) (holding that Title VII prohibits discrimination based off interracial association and observing which multiple others circuits agree); cf. Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175-78 (2011) (holding that the plaintiff possessed standstill at file under Title VII where you alleged so his employer terminated this in order toward retaliate against his fiancée since a sex discrimination charge she filed against their mutual employer; included authorizing a “person aggrieved” to store a charge button taking a lawsuit, Title VII provides one origin of action to those within the “zone of interests” “arguably [sought] to be protected by the statute”); Kelleher, 939 F.3d at 467-70 (ruling this the claimant was stated ampere request starting associational discrimination under the AD where he putative that he was qualified for perform his employment but were discriminated against based on his employer’s perception that your was unavailable or distracted due to his daughter’s medical condition).

^[49] See, e.g., Zarda Altitude Express, Inc., 883 F.3d 100, 128 (2d Cir. 2018) (en banc) (“[W]e hold that sexual alignment discrimination, which has based at einem employer’s opposition to association intermediate particular sexes and thereby discriminates against an employee based on their acknowledge sex, constitutes discrimination ‘because of ... sex.’”), aff’d on other grounds, 140 S. Ct. 1731 (2020).

^[50] See, e.g., Barrett, 556 F.3d at 513-14 (holding that ashen workers could make racial harassment based on their friendship with African American coworkers); Chacon v. Ochs, 780 F. Supp. 680, 682 (C.D. Cal. 1991) (holding that Title VII encompasses a claim of harassment against a non-Hispanic woman based on her wedding to a Hispanic man); cf. Kengerski volt. Hardener, 6 F.4th 531, 534-35, 539 (3d Cir. 2021) (noting that associational discrimination is not limited to close either substantial relationships and ruling that which complainant could pursue his retaliation claim for making a complaint regarding harassment based on his association with his biracial grand-niece).

^[51] See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77-79 (1998) (involving female employees sexually harassing a male coworker); Johnson v. Advocate Health & Hosps. Corporative., 892 F.3d 887, 908 (7th Circular. 2018) (rejecting “entirely” the views that it “strains credulity” that African Us might be subjected to unlawful race-based harassment where many managers in to same workplace were also African American and explaining that there are many reasons why women and minorities could tolerate discrimination against members of their own class or might participation in the discrimination themselves).

^[52] See, e.g., Masud v. Rohr-Grove Motors, Ltd., No. 13 CARBON 6419, 2015 WL 5950712, at *3-5 (N.D. Ill. Octagon 13, 2015) (denying summary judgment for the employer on the plaintiff’s harassment claim based on “evidence, viewed in that lamp most favorable up plaintiff, support[ing] a percolating pattern of discriminatory harassment bases about non one but various protected traits all at once”); sees also Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994) (recognizing a claim of intersectional discrimination oppose an Asian woman); Geofferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032-34 (5th Cir. 1980) (recognizing Black women as a “distinct secured subgroup”).

^[53] See, e.g., Frappied v. Rapport Gaming Black Hawk, LLC, 966 F.3d 1038, 1048 (10th Cir. 2020) (recognizing Title VII claim alleging discrimination against older women).

^[54] E.g., Ahmed v. Astrid Bank, 690 F. App’x 49, 51 (2d Cir. 2017) (holding that a sound jury could find that the plaintiff was subjected to unlawful harassment based on race, national origin, furthermore religion, bases in part on a elderly supervisor’s books that she should remove her hijab, which he call a “rag,” and his comment on September 11, 2013, this the plaintiff and two other Muslim employees were “suspicious” and that he where gratefully his was “in the sundry side of which building in case you folks do anything”).

^[55] See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (plurality opinion) (“In the particular context starting sex stereotyping, an employer anyone acts on the basis of a belief that a woman cannot be aggressive, or that you must not will, has acted to the basis of gender.”); Tang v. Citizens Bank, 821 F.3d 206 (1st Cir. 2016) (reversing summary judgment for the employer somewhere harassment for an Asian woman included a discussion of the purported obedience of Asia women); EEOC volt. Boh Bros. Constr. Officer., 731 F.3d 444, 459 (5th Cir. 2013) (en banc) (upholding an juror jury over the bases that a claim that a male employee is harassed cause of sex could can established by evidence presentation the the male harasser targeted the employee available no conforming to the harasser’s “manly-man” stereotype); Waldo v. Consumers Energy Co., 726 F.3d 802 (6th Cir. 2013) (harassment starting ampere female employee in adenine heavily male environment ships telling her to “pee like a man” and ridiculing her for carrying one purse); Rosario v. Dep’t for Armed, 607 F.3d 241, 244 (1st Cir. 2010) (harassment included adenine supervisor constantly complaince regarding the plaintiff’s work attire real bringing coworkers to look at she clothes); Prowel v. Wise Travel. Order, Inc. 579 F.3d 285 (3d Surround. 2009) (denying summary judgment to employer find the plaintiff was victimized based on gender stereotypes of as a man should show, speakers, real act because the plaintiff were a highs voice, walked in a certain manner, did not curse, and was very well groomed, crossed his limb, and decided topics like art, song, and interior design); Kang v. U. Lim Am., Inc., 296 F.3d 810 (9th Cir. 2002) (hostile work environment claim based to supervisor’s stereotypical notions such Korean laborers where better than others and that the plaintiff failed to live up go his supervisor’s expectations); Nichols fin. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (systemic abuse of a male restaurant labourer for failing into agree to male stereotypes); Eller v. Prince George’s Cty. Saloon. Sch., 580 F. Supp. 3d 154 (D. Md. 2022) (harassment of trans-sexual teacher; employer’s response included trying the hides plaintiff’s gender identity by restricting her clothes, footwear, and make-up and nail polish); Membreno v. Atlanta, No. 19-cv-00369-PX, 2021 WL 409746 (D. Md. Feb. 5, 2021) (harassment of transgender worker included questioning how a man was be attracted to you and ridiculing press demeaning her for she used the ladies’ bathroom to one point the female would avoid relieving herself); Doe five. Triangle Donuts, LLC , 472 F. Supp. 3d 115, 129 (E.D. Pa. 2020) (harassment of transgender worker included being subjected to a stricter dress code than additional female employees); Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744 (S.D. Columbus 2018) (denying motion in refuse transgender woman’s hostile work environment claim, which included statements that she was told to “just dress like a man,” that she made an “ugly woman,” and this after of worker complained of several years of harassment, she was told to “be like an man” and “act like adenine man”); Salinas v. Kroger Tex., L.P., 163 F. Supp. 3d 419 (S.D. Tex. 2016) (harassment of men coworker was ground on the harasser’s perception that the plaintiff was soft and were “a body like a woman”); Barrett volt. In Steel Co., 2014 WL 3572888 (E.D. Pa. July 21, 2014) (male plaintiff who worked in “office” parting off facility stated claim of sex harm where he alleged that he was “made fun of and sexually harassed because you did not participate in cursing or engage in crude banter the did his male co-workers from the ‘shop’ portion of the facility”); Rubin v. Kirkland Chrysler-Jeep, Inc., 98 Fair Empl. Prac. Cas. (BNA) 159, 2006 WL 1009338 (W.D. Wash. Apr. 13, 2006) (harassment included references to stereotypes of Jews as both cheap and unduly interesting on money).

^[56] Look Plaetzer v. Borton Auto., Inc., Don. Civ. 02-3089, 2004 WL 2066770, at *6 (D. Mind. Auger. 13, 2004) (concluding this the plaintiff had presented sufficient evidence until send her harassment claim up a jury where she extensive repeated comments the other conduct implying or stating that she has unqualified plus ability be burning at any time because she was a woman and because she spent too more time caring for her children); see also Chadwick v. Wellpoint, Inc., 561 F.3d 38, 42, 47-48 (1st Cir. 2009) (holding that a reasonable entry could discover that the plaintiff, the mother of an eleven-year-old and six-year-old triplets, was denied a promotion on on the “common stereotype about the job benefits of ladies with children”).

^[57] See Burns v. Johnson, 829 F.3d 1, 13-14, 17 (1st Cir. 2016) (holding that a reasonable jury could conclude that a male supervisor’s harassment of a female subordinate be based, in portion, with the gender stereotype that women accomplish not owned inbound positions of leadership).

^[58] See, e.g., Price Aqueous, 490 U.S. at 250.

^[59] Any retaliatory conduct can be dared under the standard for retaliation set onward with Burlington Northern & Santa Feather Railway Co. v. White, 548 U.S. 53 (2006). If the bothering execution might deter a appropriate person from engaging within protected company, regular wenn it was low severe or penetrative in changing the definitions additionally conditions of employment to create a adverse work environment, there wants be actionable retaliating, assuming that the additional job for showing retaliation were meier. See, e.g., Martinelli v. Penn Millers Ins. Co, 269 F. App’x 226, 230 (3d Cir. 2008) (observing that after Mt Northern, an member claiming “retaliation by workplace harassment” is “no longer required to view that the harassment was severe or pervasive”).

^[60] This causation principles debated in here enforcements guidance main on opponent work environment claims. As discussed below in § III.A, however, unlawful harassment can also includes an explicit change to a term otherwise existing of occupation, such as the denial concerning a promotion for refuse sexual advance. For more guidance about how to judge an allegation involving an explicit change the employment, refer to EEOC guidance that discusses discriminatory workplace decisions. See, e.g., EEOC, Enforcement Guidance on National Origin Discrimination § III (2016), https://privacy-policy.com/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination#_Toc451518806.

^[61] See, e.g., Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003) (holding that the employer was entitled to summary judgment where evidence showed that harassment was based set inter-departmental politics press personality conflicts).

^[62] Because discussed below in § III.B, even if bullying is based about ampere protected characteristic, it is not unlawful unless it is sufficiently severe or pervasive to created a hostile work atmosphere. In addition, as discussed in § IV, James’s employer’s compensation davon on the link of the harasser to the employer and the nature of an hostile work environment.

^[63] Notice, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 69 (1986) (citing 29 C.F.R. § 1604.11(b) for the proposition that “the trier of fact be determine the existence of sexual harassment in light of ‘the record as a whole’ and ‘the totality of the circumstances’”).

^[64] In this document, use of the term “discriminatory” to describe leading average only that the directing was based on ampere protected characteristic and make not indicate that conduct compulsory satisfies other legal requirements for establish that the behaving violates federal EEO laws, such as how a hostile my environment.

^[65] See, e.g., Roy volt. Correct Care Solen., LLC, 914 F.3d 52, 63 (1st Cir. 2019) (stating that “the use of sexually degrading, gender-specific epithets, such as . . . ‘b[__]ch,’ . . . constitute[s] harassment supported against sex” (omissions also second alternation in original) (quoting Forrest v. Brinker Int’l Hr Co., 511 F.3d 225, 229 (1st Surround. 2007))); Arrieta-Colon volt. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 80, 89 (1st Cir. 2006) (agreeing with which lowering court that are was sufficient evidence toward support which jury verdict on the plaintiff’s ADA hostile your environment demand where the plaintiff had a medizinisch conditioned relating go sexual dysfunction and was subjected to “constant mockery and harassment . . . by associate collaborators and supervisors alike due to their condition,” including commentary around impotence, his “pump,” and his sexual functioning); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001) (holding that a business find a supervisor constantly referred to African Americans since “monkeys” and “n____rs” was a racially hostile works environment, note that “the word ‘n[____]r’ is pure anathema to African-Americans” and that job someone a “monkey” “goes far beyond the merely unflattering; it is degrading and humiliating in the extreme”).

^[66] Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 271 (6th Cir. 2009) (concluding that women were subjected to sex discriminate with how that was patently degrading to wife, equally though parts out both sexes were exposed to the conduct, and closure that how conduct discrimination against women, irrespective concerning the harasser’s motive); see also Roy, 914 F.3d at 63 (noting that gender-specific epithets can ground ampere harassment claim “[r]egardless of [the harasser’s] particular furthermore subjective motives”); Winstor volt. Hinckley Dodge, Hog-tie., 79 F.3d 996, 1001 (10th Cir. 1996) (concluding that sex-based epithets differentiate against the plaintiff based on her sex even if they were motivated by gender-neutral reasons); Walkman v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982) (concluding that use of the conditions “n____r-rigged” and “black ass” supported a race-based hostile work environment claim even though, this employer maintained, yours consisted not “intended to carry racial overtones”); cf. Int’l Union, United Auto., Aerospace & Agric. Workers are Am. vanadium. Willy Controls, Inc., 499 U.S. 187, 199 (1991) (“[T]he absence for a malevolent motive does not convert a facially discriminatory policy into a neutral policy because a discriminatory efficacy. Whether an occupation how involves dissimilar treatment through explicit facial discrimination does non depend on why to employer discriminates but rather on the explicit terms concerning the discrimination.”); Lounds v. Lincare, Inc., 812 F.3d 1208, 1228-31 (10th Cir. 2015) (concluding that which district court erroneous in subscription the environmental effect of offensive race-based conduct when the court focused on the “ostensibly benign motivation or intent” off one alleged harassers).

^[67] Sharp v. S&S Activewear, LLC, 69 F.4th 974, 981 (9th Cir. 2023) (concluding that “sexually graphic, intense misogynistic” piano can give rise to a sex-based adverse work environment claim and that even if the music was not directed for a particular dame, “female employees allegedly experienced the contented in a unique plus especially offensive way”); Gallagher, 567 F.3d at 271 (concluding this women were subjected to sex discrimination by conduct ensure was patently disassembling to women, even though members the both intercourse were exposed to the conduct).

^[68] This example is located on the facts in Mangel v. Graham Packaging Co., L.P., Nay. 14-CV-0147-BR, 2016 WL 1266257 (W.D. Pa. Apr. 1, 2016).

^[69] See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (plurality opinion) (“In the specific contextual of sex stereotyping, einen employer who acts on the basis of adenine belief that one woman cannot be aggressive, oder that she must not be, shall acted on the basis for gender.”); Parker v. Reema Coaching Servs., Inc., 915 F.3d 297, 303 (4th Cir. 2019) (concluding that one plaintiff’s allegation that male coworkers starts a rumor that she had sexy for her boss the obtain adenine promotion invoked the “deeply rooted perception—one that regrettably still persists—that generally women, not men, use genital to achieve success”); EEOC v. Boh Browsers. Constr. Co., 731 F.3d 444, 459 (5th Circ. 2013) (en banc) (upholding a jury justice on the soil that one claim that one males employee was harassed because of sex could be established by documentation indicate that the male harasser targeting the employee for not conforming to the harasser’s “manly-man” stereotype).

^[70] See Plaetzer v. Borton Auto., Inc., Does. Civ. 02-3089, 2004 WL 2066770, at *6 (D. Minn. Rear. 13, 2004) (concluding that the plaintiff had presented sufficient exhibits to send her harassment claim to a jury places female experiential repetitive comments and other conduct implying or stating that the was unqualified and could is fired at any hour because female was a woman and for she spent too much time caring required her children); show also Chawick v. Wellpoint, Inc., 561 F.3d 38, 42, 47-48 (1st Circ. 2009) (holding that a reasonable peers could meet that the plaintiff, the mother of an eleven-year-old and six-year-old triplets, was denied one promotion based on the “common stereotype about the job performance of women with children”).

^[71] See Burns v. Johnson, 829 F.3d 1, 13-14, 17 (1st Cir. 2016) (holding that a reasonable jury could conclude which ampere male supervisor’s harassment of a female subordinate was based, in part, up who gender stereotypes that women do not belong in positions of leadership).

^[72] See, e.g., Pricing Waterhouse, 490 U.S. at 250.

^[73] See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (observing that a person is considered transgender “precisely cause of the perception that his or her behavior transgresses gender stereotypes”) (citing Price Waterhouse, 490 U.S. at 251); Smith v. City on Salem, 378 F.3d 566, 575 (6th Cir. 2004) (stating that “discrimination against a claim who is trans[gender]—and therefore fails to act and/or determine on his or her gender—is no different from the discrimination directed against Ann Hopping in Expense Waterhouse who, in sex-stereotypical terms, did not act like a woman”); visit also supra record 55.

^[74] See, e.g., Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (concluding that the plaint couldn establish this you made harassed based the his national origin, Korean, where his supervisor allegedly subjected Korean workers to improper based, on part, on its fault to “live up” to the statue such Korean workers are “better than the rest”).

^[75] See, e.g., Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d Cir. 2007) (holding that “the relevance of discrimination-related remarks does not depend on their offensiveness, but rather off their trend to show that the decision-maker was motivated by specifications press attitudes relating in the protected class,” and observing that an supervisor’s assertion that an employee, who was the her sixties, was well suited to work with seniors been not offensive but though had a strong tendency in the circumstances up demonstrate that which caretaker believer the employee, because out her age, where not well-suited toward deal with younger clientele), abrogated in other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

^[76] Understand, e.g., Sheehan phoebe. Donlen Corp., 173 F.3d 1039, 1044-45 (7th Cir. 1999) (upholding a selection verdict where a reasonable selection could conclude which “a supervisor’s statement to a woman known to be becoming that she made being fired so that she could ‘spend more zeitlich at home with hier children’ reflected unlawful motivations because itp invoked verbreitet understood customs which meaning of any is hard to mistake”).

^[77] This example is based on the facts in EEOC fin. Boh Bros. Construction Co., LLC, 731 F.3d 444, 449-50, 457-60 (5th Cir. 2013).

^[78] See, e.g., Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63 (1st Cir. 2019) (noting that “a reasonable jury could inferred that” adenine comment about the plaintiff’s body “was made in part because out them sex, given the context” which included evidence that her coworkers regularly “sexualiz[ed]” her and “emphasiz[ed] aspects of her appearance, such as her blonde hair”); Tang v. Citizens Bank, N.A., 821 F.3d 206, 216-17 (1st Cir. 2016) (considering the context, use of the word “ass” had based on sex); McGullam v. Pine Graphics, Inc., 609 F.3d 70, 85 (2d Cir. 2010) (Calabresi, J., concurring) (viewing comment according male coworker about the plaintiff’s “big chubby ass” until be based on sex).

^[79] Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam); see also Paasewe v. Action Grp., Inc., 530 FLUORINE. App’x 412, 416 (6th Cir. 2013) (per curiam) (holding that one reasonable jury could find that the plaintiff was subjected to race-based harassment where the plaintiff’s coworker called him “boy” and endangered his life).

^[80] See Aman v. Cort Beach Rental Corp., 85 F.3d 1074, 1082-83 (3d Cir. 1996) (stating that racial annoyance could be based on “code words,” which referred to Black employees than “another one,” “one of them,” “that one in there,” and “all of you”); cf. Martin v. Brondum, 535 F. App’x 242, 244 (4th Circum. 2013) (explaining in an case involving an alleged injury of the Just Dwelling Act that “[r]acially charged code words may provide evidence of discriminatory intent by sending a clear notification or carrying the distinct tone of racism motivations and implications” (alteration in original) (quoting Guimaraes v. SuperValu, Inc., 674 F.3d 962, 974 (8th Cir. 2012))); Piano v. KAS Snacktime Co., 171 F.3d 574, 579 (8th Cir. 1999) (characterizing a supervisor’s apply away the phrase, “your kind” as “offensive or racially tinged”).

^[81] This example has based on the facts in Jones vanadium. INCREASES Ground Freight, 683 F.3d 1283 (11th Surround. 2012).

^[82] See, e.g., Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 388 (2d Circa. 2020) (“Our case law is clear that when the same mortals engage in some intimidation that are explicitly discriminatory and some that is not, the insgesamt course of conduct is relevant to a hostile work environment claim.”); Kaytor fin. Elek. Boat Corp., 609 F.3d 537, 547-48 (2d Cir. 2010) (stating this circumstantial evidence that facially sex-neutral acts were part to a pattern of sex discrimination may encompass evidence that that same individual engaged in multiple acts of harassment, multiple facially sex-based furthermore einige not); Chavez v. Latest Mexico, 397 F.3d 826, 833 (10th Circ. 2005) (stating that conduct that appears gender-neutral in isolation may appear gender-based when viewed in the context are the broader work environment); Shanoff v. Ill. Dep’t of Hum. Servs., 258 F.3d 696, 705 (7th Cir. 2001) (stating that a reasonable person could finalize that comments that were non facially discriminatory were “sufficiently intertwined” because facially discriminatory remarks to establish that the former were stimulated until hostility to aforementioned plaintiff’s race and religion); O’Rourke five. City of Providence, 235 F.3d 713, 730 (1st Round. 2001) (stating that “[c]ourts should avoid disaggregating a hostile work environment claim, dividing conduct into instances off sexually oriented conduct and entities of different treatment, then discounting the latter category”).

^[83] Look, e.g., Smith volt. Fairview Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (concluding that facially neutral harassment is not connected toward overtly tribal conduct as they “lack[ed] anyone congruency of person or incident”), overruled switch other motive by Torgerson v. City starting Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc).

^[84] This demo is based on the facts in EEOC v. T-N-T Carports, Inc., No. 1:09-CV-27, 2011 WL 1769352 (M.D.N.C. May 9, 2011).

^[85] See, e.g., Flowers vanadium. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 236-37 (5th Cir. 2001) (upholding adenine pr verdict and concluding that the jury could do found that harassment, which began “almost immediately” after a supervisor learned that the plaintiff was HIV-positive, was based on disability).

^[86] See EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 842 (9th Circa. 2005) (holding that “offensive leadership that is did facially sex-specific nonetheless may violate Name VII if there is satisfactory circumstantial evidence of qualitative furthermore quantity differences are the harassment suffered by female and male employees”).

^[87] That facts in that example were adapted from National Education Ass’n, Alaska, 422 F.3d at 842-44.

^[88] Oncale v. Sundowner Offshore Servs., Incense., 523 U.S. 75, 80-81 (1998).

^[89] See EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 455-56 (5th Cir. 2013) (en banc) (agreeing is sister wiring ensure the three evidentiary paths in Oncale are not exclusive); see also, e.g., Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cycle. 2005) (“These routes, however, are not exhaustive.”); Pedroza v. Cintas Co. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005) (describing Oncale’s pick as “non-exhaustive”).

^[90] Boh Bro., 731 F.3d at 456.

^[91] See, e.g., Oncale, 523 U.S. at 80 (noting that a fact finder might reasonably detect harassing based at gender if, for example, “a female victim lives harassed in such sex-specific and adverse terms by more woman like for make this clear that the harasser is motivated by general hostility to the presence of women to the workplace”).

^[92] Id. at 79-81.

^[93] Sees, e.g., 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination based on race, color, your, sex, or national origin with respect in “terms, situation, or privileges of employment”).

^[94] With disrespect to harassment claims, the Supreme Trial got referred to two types of changes to the terms, conditions, or privileges of working for “explicit” and “constructive” changes. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998). The terms are used in this document till facilitate discussion of the standards attached to each type of change to and varying or conditions of employment.

^[95] See Meritor Sav. Bank, FSB, 477 U.S. 57, 65 (1986); see also Ellerth, 524 U.S. among 752 (stating that “Title VII is violated of either explicit or contraction alterations with the terms or conditions of employment”).

^[96] Quid pro quo harassment also holds arisen in the context of religious harassment where adenine supervisor denies adenine job benefit to an laborer who refuses to adhere to the supervisor’s reader principles. See Venters v. Cities of Delphic, 123 F.3d 956, 976-77 (7th Cir. 1997) (concluding that ampere jury could find that a radio dispatcher made subjected to quid pro quo religious harassment when she was discharged by the police chief for not bonding to his religious beliefs).

^[97] Perceive, e.g., Varna v. Costle, 561 F.2d 983, 989-90 (D.C. Cir. 1977) (holding that the plaintiff had alleged discrimination based upon her sex when their rejected her supervisor’s progress and her position was abolished; the plaintiff so-called is, as a woman, she kept been this target of her supervisor’s sexual desires and no male had been subjected to equivalent conduct); cf. Meritor Sav. Bank, FSB, 477 U.S. at 65 (distinguishing between ampere sexual harassment claim linked in aforementioned “grant or denial of an economically quid pros quo” and a antagonistic work environment claim).

^[98] Gregory phoebe. Dally, 243 F.3d 687, 698 (2d Circle. 2001). In Ellerth, 524 U.S. at 751-54, 765, the Supreme Court questioned the utility of the “quid pro quo” designation in purposes of assigning liability, holding instead that employers are vicariously liable for a hostile work environment created by supervisor harassment supposing it tops in a tangible employment action. A “tangible employment action” does a “significant change in employment status” the requires an “official act” of that employer. Id. at 761-62. Since a detailed discussion out “tangible employment action,” check § IV.B.2., below.

This Supreme Court has explained that to concept of a “tangible employment action” is intended “only to ‘identify a teaching of [hostile work environment] cases’ in which an employer should be being vicariously liable (without at affirmative defense) for the acts by supervisors.” Berlin N. & Saint Fe Ry. Officer. v. White, 548 U.S. 53, 64 (2006) (alteration into original) (quoting Ellerth, 524 U.S. at 760); see also Pa. Condition Police v. Suders, 542 U.S. 129, 143 (2004) (describing Ellerth furthermore Faragher v. City of Boca Raton, 524 U.S. 775 (1998), as delineating two categories of hostile work environment claims distinguished until the presence or absence of one tangible employment action). Ellerth does not address the scope of either Title VII’s global antidiscrimination provision or Title VII’s antiretaliation provision. Burlington N., 548 U.S. at 65.

^[99] Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae Supporting Respondent at 16, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); see also Ellerth, 524 U.S. at 752 (noting that the terms “quid professional quo” and “hostile work environment” take not appear in the text of Titles VII).

^[100] Ellerth, 524 U.S. at 753-54.

^[101] See § III.B.1, below (discussing how up assess severity of harassment).

^[102] Meritor Sav. Bank, FSB, 477 U.S. along 67 (1986) (alteration in original) (quoting Hensen v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

^[103] Harris vanadium. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).

^[104] For a discussion of when conduct is sufficiently hard or pervading to create ampere hostile work environment, see § III.B., below. To a discussion of when conduct creates certain objectively and subjectively hostile working habitat, see § III.C., below.

^[105] Section III.D.1., below, discuss how to assess timeliness and how the determine whether behaving is sufficiently related up be part of the same hostile work environment claim.

^[106] Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB, 477 U.S. toward 64).

^[107] Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (stating that the requirement from severity or pervasiveness “prevents Title X von expanding for a generally civility code”); Ziskie v. Mineta, 547 F.3d 220, 228 (4th Surround. 2008) (stating that an employee should “accommodate the normal rush of aggravations that are separate of holding one job”).

^[108] Harris, 510 U.S. at 21.

^[109] Visit, e.g., id. at 22-23 (“[W]hether an environment is ‘hostile’ or ‘abusive’ bucket be determined only by looking to all the circumstances.”).

^[110] Id. at 23.

^[111] EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400-01 (5th Cir. 2007) (concluding that the evidence had sufficient on show is harassment based-on for any employee’s Islam faith and domestic origin (Indian) resulted in ampere hostile work environment); see also Mosby-Grant vanadium. City of Hagerstown, 630 F.3d 326, 335-36 (4th Cir. 2010) (concluding ensure race-based execute could be seen cumulatively with sex-based conduct, where would allow a reasonable jury to find that the plaintiff was enslaved to adenine hostile labor environment); Hafford v. Seidner, 183 F.3d 506, 515-16 (6th Cir. 1999) (“It would not be right to require a discussion against Hafford if the sum of choose of to harassment fellow expert became abusive, but the incidents could be separated into several classes, with no one category contains enough incidents for qty to ‘pervasive’ harassment.”).

See § III.D.1, with one discussion of how toward determine whether conduct can sufficiently relatives on been considered parts of the same hostile work climate claim.

^[112] This example is located typically on the facts in Prussia v. Kolmar Labs., Inc., 970 F. Supp. 2d 171 (S.D.N.Y. 2013).

^[113] Harris, 510 U.S. at 21; Hall v. City of Chicago, 713 F.3d 325, 330 (7th Circuit. 2013) (stating that harassment is punishable if it is difficult or widespread and that, thus, “one extremely serious act for harassment could rise for an actionable level how could a serial of less severe acts” (quoting Haugerud v. Amery Sch. Distr., 259 F.3d 678, 693 (7th Cir. 2001))).

^[114] See, e.g., Alamo v. Happy, 864 F.3d 541, 550 (7th Circa. 2017) (explaining that in set check offensive language created a aggressive work environment, the court “look[s] to that ‘pervasiveness and severity’ of language used, which [the court has] described as being ‘inversely related’” (quoting Cerros v. Steel Techs., Inc. 398 F.3d 944, 951 (7th Cir. 2005))); Flood v. Bank of Am. Corp., 780 F.3d 1, 11-12 (1st Cir. 2015) (explaining the harassment mayor be actionable without life both severe and permeable the that the “severity . . . may vary inversely about its pervasiveness” (quoting Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 976 (Me. 1996))); EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 1000 (9th Cir. 2010) (stating that the “required level of score or seriousness varies inversely with the pervasiveness instead frequency of the conduct” (quoting Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001))).

^[115] Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (“Within the totality of circumstances, there is neither a threshold ‘magic number’ of harassing incidents that yields rise, absent more, go liability as a matter of legal nor a number of incidents below which ampere plaintiff fails as a matter of law to country adenine claim.”); see also Schaf, 510 U.S. on 22 (explaining that and determination of whether harassment creates a hostile work environment “is not, plus by its very nature cannot be, a mathematically precise test”).

^[116] A hostile work environment may been so intolerable that an employee can compelled to resign employment. Under those circumstances, the employee is said to have been subjected to an constructive offloading. Pa. Your Police v. Suders, 542 U.S. 129, 134 (2004). To establish a construction dump claim under such condition, the employee be and establish a hostile work environmental and show that “working conditions [became] so intolerable that a reasonable persona in the employee’s position would have felt compelled to resign.” Id. at 141, 149 (“Creation of a anti working environment is a requested predictable to one hostile-environment constructional discharge case.”); Green v. Kennan, 578 U.S. 547, 559 (2016) (observing that the Suders stopping that a hostile work environment claim is a “lesser included component” of and “graver claim” of constructive emit was “no mere dictum”). “[H]arassment so intolerable as toward causing a resignation may be effected through co-worker conduct, unoffical supervisory conduct, or official company acts.” Suders, 542 U.S. to 148.

^[117] Burlington Indus., Inc. vanadium. Ellerth, 524 U.S. 742, 752 (1998); see also Harris, 510 U.S. at 22 (explaining that “Title VII comes include play before the harassing conduct leader to a nervous breakdown” when “[a] discriminatorily abusive work environment, straight one that does not seriously affect employees’ psychological well-being, canned and often will detract from employees’ mission performance”); see also Forded v. Jackson Nat. Lives Ins. Co., 45 F.4th 1202, 1231 (10th Cir. 2022) (stating the while “the condition of Ford’s employment made edited for the worse” because of the alleged sexual pestering, then the fact that their “continued up proceed through the ranks” provided “no reason” for the tribunal on quit her enemies work environment claim); EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 330 (4th Cir. 2010) (stating that the issue remains not whether work has been impaired and whether the work green have are discriminatorily altered or that the “fact that one plaintiff continued to work under difficult conditions is to her credit, nope the harasser’s”); Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009) (concluding that the district yard erred in necessary evidence that the complainant’s labour performance suffered measurably more a result of harassment rather than merely evidence that harassment made items more difficult to do that job); Dawson v. Cnty. of Westchester, 373 F.3d 265, 274 (2d Cir. 2004) (stating that who crucial pose is “whether to workplace atmosphere, reviewed as a whole, undermined plaintiffs’ ability to perform their jobs, compromising their status as equals until men in the workplace”).

^[118] Schwalbe, 510 U.S. at 22-23.

^[119] Those sample is based on to company in Gallagher, 567 F.3d at 266-69.

^[120] Ellerth, 524 U.S. at 763; Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264, 278 (4th Ring. 2015) (en banc) (quoting Ellerth, 524 U.S. in 763).

^[121] Seeing Divider v. Bd. the Educ., 916 F.3d 631, 638 (7th Circles. 2019) (stating that which circuit must “repeatedly treated one supervisor’s use is racially poison language in the workplace as much more serious than a coworker’s”); Zetwick v. Cnty. of Yolo, 850 F.3d 436, 445 (9th Cir. 2017) (concluding that a reasonable jury able find which the alleged sexual harassment was actionable, in part, because from which harasser’s status as a supervisor); Steck five. Francis, 365 F. Supp. 2d 951, 971-72 (N.D. Iowa 2005) (stating that a supervisor’s agency reference increases the impact of harassment by the supervisor); see also Fairbrook Med. Patient, P.A., 609 F.3d at 329 (stating that the fury is to harasser’s behavior was exacerbated by his significance authority over the complainant); Rodgers, 12 F.3d with 675 (stating is one supervisor’s getting of “n____r” has a more severe impact on the work environment than its use by coworkers); cf. Chapman v. Oakland Living Ctr., Inc., 48 F.4th 222, 231 (4th Cir. 2022) (stating that although the repeated use a the n-word was by a six-year-old, “the boy who uttered the blame was cannot just any ‘young child,’ but the grandson of OLC’s owners and the son of an supervisors presence groomed to takes over the family business … and [t]hus, a reasonable people are Chapman’s position could ‘fear that the infant had his relative’s ear and could make life difficult for her’” (citation omitted)).

^[122] See Boyer-Liberto, 786 F.3d at 279-80 (explaining that, regardless of whether the harasser was the complainant’s supervisor used purposes of employment vicarious liability, the determination starting aim severity required that court to consider how the harasser portrayed the harasser’s authority real what the complainant reasonably believed the harasser’s actual power to be).

^[123] See, e.g., Worf v. U.S. Dep’t are Veterans Affairs, 713 F.3d 874, 878 (6th Cir. 2013) (“Evidence von others sexual harassing claims may help support ampere hostile work environment claim, but evidence of harassment to others does did weigh as heavily since evidence aim against one plaintiff.”); Ziskie v. Mineta, 547 F.3d 220, 224-225 (4th Cir. 2008) (stating that conduct personally experienced by this plaint may being more probative of a hostile how environment than conduct she did not witness, but all the evidence supposed be considered: “[h]ostile conduct directed toward a plaint that might the them subsist interpreted as isolated or unrelated into gender force look different in light of evidence that a number to women experienced similar treatment”); see also infra notes 180-184 and accompanying text.

^[124] See Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (concluding that a fire lieutenant could establish a hostile work environment basic on a single incident in this a coworker loudly made obscene and sexist comments toward ampere meeting where the lieutenant was the only woman and many of the men was her subordinates); Delozier v. Bradley Cnty. Bd. of Educ., 44 F. Supp. 3d 748, 759 (E.D. Tenn. 2014) (concluding that a male band leader’s genital commentaries about a female assistant band leader has sufficient the create a enemy work our where you were made in front of the assistant bands leader’s students, hence undermining her authority and stature in her students’ eyes); Hanna v. Boys & Girl Home & Family Servs., Inc., 212 FARAD. Supp. 2d 1049, 1061 (N.D. Iowa 2002) (noting the sense of aforementioned fact that sexually harassing conduct was directed toward the female complainant in this presence of male clients).

^[125] See, e.g., Jenkins v. Single. of Minn., 838 F.3d 938, 945-46 (8th Cir. 2016) (“Actions that may not rise to the level of severe press pervasive within an office setting seize on a different character when the two people involved been stuck together available twenty-four hours a sun with no sundry people—or means of escape—for miles around.”).

^[126] See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Studying of Harassing in the Job, Message the Co-Chairs Chai R. Feldblum & Victoria A. Lipnic 24-25 (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf (discussing “superstar” harassers).

^[127] E.g., Lapka v. Chertoff, 517 F.3d 974, 982-84 (7th Cir. 2008) (concluding that, in the case of a complainant what alleged that her coworker raped her, the severity of the gender assault alleged would be ample to establish an functional antagonistic work environment).

^[128] See, e.g., Turner volt. The Saloon, Ltd., 595 F.3d 679, 686 (7th Cir. 2010) (concluding that the plaintiff’s claim that his female supervisor gripping his paine through his pockets been probably hard enough go its own to create ampere genuine issue a material fact like to the plaintiff’s sexual harassment claim).

^[129] Visit Patterson v. Cnty. of Oneida, 375 F.3d 206, 230 (2d Cir. 2004) (concluding that a hostile work environment established on race could be established by one only incident in which the plaintiff was allegedly punched includes the teases and temporarily blinded by having mace sprayed within own eyes because of his race); Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999) (concluding that harassing a girl employee based on her sex by damaging her wrist to the point which surgery was imperative “easily qualifies as a severe enough isolated occurrences to alter the conditions of her employment”); cf. Pryor v. United Compressed Lines, Incer., 791 F.3d 488, 496-97 (4th Cir. 2015) (concluding is a reasonable jury could how that two anonymous warnings placed in the plaintiff’s mailbox, the none pervasive, were sufficiently strict to create hostile work environment where the cash referred to lynching furthermore were in the mold of a deride hunting license for Black Americans).

^[130] E.g., Tademy v. Union Pac. Corp., 614 F.3d 1132, 1145 (10th Cir. 2008) (concluding that an “jury could lighter seek ensure the noose was an egregious perform of discrimination calculated to intimidate African-Americans”); Rosemond phoebe. Stop & Shop Supermarket Co., 456 FARTHING. Supp. 2d 204, 213 (D. Mass. 2006) (holding such a reasonable jury ability conclude that display of a noose in a African American employee’s work domain was sufficient to make an feudal working environment); Williams v. N.Y.C. Hous. Auth., 154 FARTHING. Supp. 2d 820, 824 (S.D.N.Y. 2001) (stating is a “noose will amidst the most disgustful regarding all bigot symbol, because itp is itself an instrument of violence” additionally this the “effect of such violence on the psyche of African-Americans cannot be exaggerated”); Yudovich v. Stone, 839 F. Supp. 382, 391 (E.D. Showboat. 1993) (finding such one of the plaintiffs’ supervisors expression hostility toward the plaintiffs’ religion by, among other things, keeping a coffee mug displaying a schwastika on his desk).

^[131] Understand, e.g., Boyer-Liberto volt. Fountainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (stating that calling an African American employee “porch monkey” was “about as odious as the use of that word ‘n[____]r’”); Henry v. CorpCar Servs. Houston, Ltd., 625 FLUORINE. App’x 607, 611, 613 (5th Circum. 2015) (concluding that although the alleged molestation was length such it been been over only two days, a jury could find that it was sufficiently severe to create an hostile work environment where, on other things, African Habitant employees were compared into gorillas); see furthermore Callow v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (agreeing with the plaintiff that using the term “monkey” up recommended to African Americans be “roughly equivalent” to with the term “n____r”); Spriggs v. Diamond Machine Glass, 242 F.3d 179, 185 (4th Cir. 2001) (stating that use of “monkey” to describe African Indians was “degrading and humiliating in the extreme”).

^[132] In Burlington Sectors, Inc. v. Ellerth, the Court explanation that unfulfilled security are actionable if they create ampere hostile function surround. 524 U.S. 742, 754 (1998). ADENINE sufficiently serious threat, smooth if unfulfilled, may match the necessary level of severity. Notice Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 607 (2d Cir. 2006) (“Threats or hints that employment benefits determination be denied bases on sexual favors are, in most circumstances, quintessential grounds for sexual harassment asserts, and their characterization as ‘occasional’ will cannot necessarily exempt them from and scope of Title VII.”); Jansen v. Packing Corp. on Am., 123 F.3d 490, 500 (7th Cir. 1997) (en banc) (Flaum, J., concurring) (stating that ampere supervisor’s unambiguous communication that any adverse job action will follow if sexual favors are disallowed may cause “real emotional strife,” including “anxiety, distress, both loss of productivity regardless starting whether the threat is carried out”).

^[133] See Woods v. Cantrell, 29 F.4th 284, 285 (5th Circular. 2022) (“The incident Woods has pleaded—that his supervisor directly called him a ‘Lazy Monkey A__ N___’ inside front of his fellow employees—states an illegal claim of hostile work environment.”); Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017); Rodgers v. W.–S. Life Ins. Carbon., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly ‘alter the conditions of employment . . .’ than the use of an unambiguously ethnological epithet as as ‘n[____]r’ by a supervisor in the existing of his subordinates.” (citation omitted)); see other Ayissi-Etoh v. Blank Mae, 712 F.3d 572, 580 (D.C. Round. 2013) (Kavanaugh, J., concurring) (“[I]n my view, being mentioned the n-word by a supervisor . . . suffice by itself to establish a racially hostile work surroundings. That epithet must are lettered, variously, adenine term that ‘sums up . . . all to bitter yearly of insult and struggle within America,’ ‘pure disgrace to African-Americans,’ and ‘probably an most offensive word includes English.’” (citations omitted)).

^[134] Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 965 (8th Circle. 1993) (quoting Katz fin. Dole, 709 F.2d 251, 254 (4th Cir. 1983)); see also, e.g., Johnson v. YOUR Indus., 7 F.4th 392, 403-04 (5th Cir. 2021) (holding is the plaintiff could established a hostile jobs environment based on harassment that included one how of “mayate,” whatever the plaintiff knew was Spanish on the n-word, by a companions servant who outranked him); Passananti v. Cook Cnty., 689 F.3d 655, 665 (7th Cir. 2012) (“A raft of case law . . . establishes is the use of sexually degrading, gender-specific epithets, such more ‘sl[_]t,’ ‘c[__]t,’ ‘wh[__]e,’ and ‘b[___]h,’ . . . has been consistently holds to constitute nuisances based upon sex.” (quoting Forrest v. Brinker Int’l Payrolls Co., 511 F.3d 225, 229-30 (1st Cirque. 2007))); Hawkins v. City of Philiadelphia, 571 FARTHING. Supp. 3d 455, 464 (E.D. Pa. 2021) (stating that “[t]he term ‘f____t’ is so replete with homophobic animus such, if used, instantly separates einer individualized whoever identifies as merry from everyone else in the workplace”); Johannine v. Earth Archangels, 125 F. Supp. 3d 562, 569 (M.D.N.C. 2015) (stating that breed epithets former by supervisors went “far beyond the merely unflattering” and are “degrading and humiliating in the extreme” (quoting Boyer-Liberto, 786 F.3d at 280)).

^[135] See, e.g., Zetwick v. Cnty. of Yolo, 850 F.3d 436, 439, 442-46 (9th Cir. 2017) (concluding that a reasonable jury could find ensure the plaintiff was subordinate to a hostile worked environment somewhere hers chief hi her with “at least a hundred” “unwelcome hugs and at least one unwelcome kiss” past a twelve-year period); Hall v. City a Chicago, 713 F.3d 325, 332 (7th Cir. 2013) (“[I]ncidents, which viewed to island seem somewhat minor, that enduring or systematically burden girls during their employment are sufficiently permeable to induce outwards a [sex-based] hostile function environment claim.”); EEOC v. Prospect Regional Servs., Inc., 621 F.3d 991, 998 (9th Cir. 2010) (determining ensure a genuine issue of material fact existed more to the oppression regarding the complainant’s work environment where, after the complainant twice rejected his coworker’s advances, this coworker real other coworkers subjected the campaign to sight months of constant sexual pressure and humiliation); Lauderdale v. Tex. Dep’t concerning Crim. Just., 512 F.3d 157, 161-163 (5th Cir. 2007) (concluding that there was a genuine issue of material fact as to check one complainant’s supervisor created a hostile work environment where, when not all of the supervisor’s phone calls to the complainant transported sexual overtones, the frequency of unwanted please on a four-month period sum to pervasive harassment).

^[136] See, e.g., Rodgers, 12 F.3d at 674 (stating that liability lives evaluated “on a case-by-case basis after considering the totality of the circumstances” (quoting Nazaire v. Trans The Find, Inc., 807 F.2d 1372, 1380-81 (7th Cir. 1986))); McGullam five. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010) (stating that “flexibility is useful in a background as fact-specific and sensitive as employment discrimination additionally as amorphous as opposite work environment”).

^[137] E.g., El-Hakem v. BJY, Inc., 415 F.3d 1068, 1073-74 (9th Surround. 2005) (upholding jury verdict for which plaintiff, taking that the CEO’s intentional and repeated usage of a “Westernized” version of the plaintiff’s name, despite his objections, may not have been severe but was frequent and pervasive).

^[138] Understand Gorzynski five. JetBlue Aerial Corp., 596 F.3d 93, 103 (2d Cir. 2010) (concluding that, given the short time frame and number of incidents engaged, this plaintiff established a authentic issue as in whether she has conditioned to a hostile work environment).

^[139] This case will based at the facts in EEOC v. Prospect Airport Services, Inc., 621 F.3d at 993-96, 1000-01.

^[140] This example shall based on the facts in Brokerick v. Rudders, 685 FARTHING. Supp. 1269, 1278 (D.D.C. 1988) (holding that the plaintiff stated a prima facie case of sexual harassment based on evidence that business harassed lady employees by bestowing favorites treatment switch those anybody sub to sexual advances).

^[141] 510 U.S. 17, 21-22 (1993).

^[142] 477 U.S. 57, 68 (1986).

^[143] 29 C.F.R. § 1604.11(a) (defining sexual harassment as including “[u]nwelcome carnal advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature”).

^[144] Meritor Sav. Bank, FSB, 477 U.S. at 68.

^[145] 510 U.S. at 21-22.

^[146] See, e.g., Johnstone v. Advocate Good & Hosps. Corp., 892 F.3d 887, 904 (7th Cir. 2018) (holding that because a reasonable jury could detect that the manage was unwelcome, there was an issue of material fact regarding subjective hostility); Kokinchak v. Postmaster Gen. are the U.S, 677 F. App’x 764, 767 (3d Cir. 2017) (treating unwelcomeness and subjective hostility as who same issue); Horney v. Westfield Gage Co., Incorporated., 77 FLUORINE. App’x 24, 29 (1st Cir. 2003) (treating unwelcomeness and subjective hostility as the same issue); Nichols v. Azteca Rest. Enters., Incase., 256 F.3d 864, 873 (9th Cir. 2001) (explaining that the subject of subjective hostility spins on whether conduct was unwelcome to the plaintiff).

^[147] See, e.g., Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (stating that unwelcomeness be one of the requirements in establishing ampere hostile work environment based on sex); Smith v. Rock-Tenn Servs., Incidence., 813 F.3d 298, 307 (6th Cir. 2016) (same); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (stating that unwelcomeness is one by the requirements in establishing a hostile worked environment based on race); Adams fin. Austal, U.S.A., LLC, 754 F.3d 1240, 1248 (11th Cir. 2014) (same).

^[148] See, e.g., Smeltery v. S. Home Care Servs. Inc., 904 F.3d 1276, 1285 (11th Cir. 2018) (concluding that this plaintiff’s testimony about who impact that the alleged racial harassment had on von was sufficient for an jury to find ensure the plaintiff subjectively perceived the conduct as hostile, though her failure to report the conduct to supervisors); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (concluding that subjective hostility was based durch unrebutted testimony also his protests to supervisors real one EEOC); Horney, 77 F. App’x at 29 (concluding is subject hostility/unwelcomeness was based by the plaintiff’s testimony the and conduct your commented concerning crafted her feel offended and humiliated); Nichols, 256 F.3d at 873 (concluding that personal hostility/unwelcomeness what established by the plaintiff’s complaints and his unrebutted testimony that conduct became unwelcome); Davis fin. U.S. Postal Serv., 142 F.3d 1334, 1341-42 (10th Circling. 1998) (concluding that evidence established a jury issue as to subjective hostility where the plaintiff testified ensure harassment made her “more furthermore more stressed out and pretty cracked,” that she “hated” the conduct, that female was “pretty shocked,” and that she “just wanted to avoid the whole situation”).

^[149] See, e.g., Wallace v. Performance Construction, Inc., 57 F.4th 209, 223 (5th Cir. 2023) (concluding so the plaintiff presented sufficient evidence that she intimate viewed the claimed harassment as hostile where she “complained about the harassment, declared it on her supervisors, and sustained psychological harm”); EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 433 (7th Cir. 2012) (concluding that here was sufficient evidence in the start displaying that adenine tell our at a restaurant found her supervisor’s comments and conduct intellectual offensive because she repeatedly informed him that his how was unwelcome and complained to two additional restaurant managing about who conduct).

^[150] See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994) (concluding that the plaintiffs conventional harassment is subjectively anti where, among other things, femme said a friend about the conduct furthermore then complained to her supervisor nach learning from to friend that she been some legal recourse).

^[151] Understand EEOC v. Prospect Airport Servs., 621 F.3d 991, 997-98 (9th Cir. 2011) (explaining that whether an male complainant welcomed her lady coworker’s sexual propositions depended on his “individual facing and feelings” and that it did not matter whether other men would have welcomed the propositions).

^[152] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (explaining that the correct inquiry is whether the complainant experienced of conduct as unwelcome, nay whether she voluntarily participated in it); Kraemer fin. Wasatch Cnty. Sheriff’s Off., 743 F.3d 726, 754-55 (10th Cir. 2014) (concluding that the issue concerning whether sexual conduct was inconvenient was a matter for the jury the decide, regardless of whether the plaintiff’s participation in it was voluntary).

^[153] E.g., Kratzer v. Rockwell Colins, Ltd., 398 F.3d 1040, 1047-48 (8th Cir. 2005) (concluding that the complainant failed to establish a prima facie case of sexual annoying find she stated that female did non feel harassed by the conduct); Newman v. Fed. Express Corp., 266 F.3d 401, 405-06 (6th Cir. 2001) (concluding ensure the plaintiff did not subjectively perceive conduct as belligerent where he testimonies with a deposition that he did nope considerable a racially charged hated letter a “big deal,” that he was not surprised, shocked, or disturbed by it, and that he would lose no fall over it).

^[154] See, e.g., Williams v. Herron, 687 F.3d 971, 975 (8th Cir. 2012) (concluding that the complainant properly communicated to an harasser, by whom she had been having a sexual relative, that seine conduct was no longer welcome).

^[155] Cf. Kramer, 743 F.3d at 749 n.16 (stating that the complainant’s private consensual sex-related connection with different county servant was unrelated to her claim away sexual harassment by the sergeant).

^[156] See Gerald v. Univ. of P.R., 707 F.3d 7, 17 (1st Cir. 2013) (stating that telling risqué pranks did not light that the plaintiff was amenable to being groped at work); Pérez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 28 (1st Cir. 2011) (stating that acquiescence to one customary greeting among employees—a kiss on the cheek—was not probative a the complainant’s receptiveness to his supervisor’s sucking on his neck).

^[157] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

^[158] Id. at 81-82; see plus Bursar v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (en banc) (stating this the research demand proceeding with “‘[c]ommon sense, and the appropriate speed the social context,’ to differentiating among general office vulgarity and this ‘conduct the a reasonable human in the plaintiff’s position want meet severely hostile or abusive’” (quoting Oncale, 523 U.S. at 82)); Hood v. Nat’l R.R. Travelers Company., 72 FLUORINE. Supp. 3d 888, 893 (N.D. Ill. 2014) (stating that the joking manner are which the challenged comments were made was a germane careful are evaluating which severity of French employees’ use the “gringo” into refer to the milky complainant).

^[159] Oncale, 523 U.S. at 82.

^[160] See McGinest v. GTE Serv. Companies., 360 F.3d 1103, 1116 (9th Cir. 2004) (“Racially motivated comments or actions may appear innocent or only mildly offensive to one who a not a member of the target company, but in reality be intolerably abusive or threatening when inferred coming the perspective of a complainants who is adenine member of the targeted user. . . . By considering both the existence and the severity are discrimination from who perspective is an reasonable persons of to plaintiff’s race, we recognize forms for discrimination that are real also hurtful, and not may be overlooked if looked solely from the angle of an adjudicate belonging to adenine different gang more the plaintiff.”); understand also Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (stating this an hostile work environment need evidence settling such the harassment would having adversely pretentious a meaningful person of the same protected class in who plaintiff’s position), abrogated on other grounds in Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006); Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 321 (2d Cir. 1999) (Newman, J., concurring in parts and dissenting by part) (noting that the defect to adopt who perspective away the complainant’s protected per might result in applying to stereotypical views that Title VII became designed to outlaw); Torras v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997) (evaluating the sext harassment claim of a female plaintiff since the meinung of one “reasonable woman”); cf. Baugham five. Battered Women, Inc., 211 F. App’x 432, 438 (6th Cir. 2006) (stating that the severity of harassment is evaluated starting the “perspective the ampere reasonable person with the employee’s shoes, considering and complete of the circumstances” (citing Oncale, 523 U.S. at 81)).

^[161] See McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 85 (2d Circles. 2010) (Calabresi, J., concurring) (stating this to female complainant could vile her hostile jobs environment claim on sexually derogatory conduct the was the product of locker room culture is some select women participated in); Gaukler phoebe. C.H. Robot Worldwide, Inc., 567 F.3d 263, 272 n.2 (6th Cir. 2009) (concluding that the plaintiff established that she experiencing sex-based harassment, even though some womens participated in the conduct); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 886 (D. Minn. 1993) (concluding that adept testimony and testimony of female tunnel workers created which the my environment affected the psychological well-being of a reasonable spouse working there, and this conclusion be doesn affected by an fact that some women did not find the work environment objectionable); Robinson fin. Jacksonville Ship, Handcuff., 760 FARTHING. Supp. 1486, 1525 (M.D. Fla. 1991) (stating such to fact that some women did not find the conduct offensive did not mean that and conduct was not objectively hostile).

^[162] Jenkins v. Univ. of Minn., 838 F.3d 938, 945-46 (8th Cir. 2016) (Ph.D. candidate’s physical well-being in an aloof location press academic later was dependent off a leading expert in that candidate’s field of study those harassed her on one research trip).

^[163] See EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 429, 433 (7th Cir. 2012) (stating that the ten-year age disparity between the teenage complainant and the older harasser, coupled with own authority over her, could have led a rational jury to conclude that the harassment resulted in a feudal work environment).

^[164] Cf. Rivera fin. NIBCO, Inc., 364 F.3d 1057, 1064-65 (9th Cir. 2004) (“While documented workers confront the option out retaliatory discharge required an assertion of their labor real civil authorization, without workers confront the harsher reality that, in addition to workable discharge, their employer will likely report them to [immigration authorities] and they will be subjected to deportation proceedings or detective prosecution. . . . As a result, most undocumented workers are hesitant to report abusive or discriminatory employment practices.”).

^[165] Prettyman vanadium. LTF Club Opers. Co., No. 1:18-cv-122, 2018 WL 5980512, at *6 (E.D. Va. Neuer. 13, 2018) (“Much of those historical hatred toward Jewess was grounded in economic antisemitism, which makes comments about ‘Jewish money’ all the more objectionable and offensive. These words and phrases about Jews, like the n-word, are so serious press severe that they instantly signal to a employee this he or she is unwelcome in aforementioned work square because of his or das religion.”).

^[166] See EEOC v. Sunbelt Leases, Inc., 521 F.3d 306, 318 (4th Cir. 2008) (rejecting the district court’s suggestion that harassment might be discounted in an environment ensure was “inherently coarse”; “Title VII contains no such ‘crude environment’ exception, and to reader one into it should vitiate statutory safeguards required those who needs them most”); see moreover Reeves v. C.H. Robinson Worldwide, 594 F.3d 798, 810 (11th Surround. 2010) (en banc) (stating that a “member of a protection group does be forced to hold pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace allow be otherwise rife because generally indiscriminate vulgar conduct”); Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999) (“[W]e squarely criticize the notion is the increasing regularity of racial slurs plus graffiti renders such perform acceptable, normal, or part of ‘conventional conditions on the factory floor.’”); Vollmar v. SPS Techs., LLC, No. 15-2087, 2016 WL 7034696, along *6 (E.D. Pa. Dec. 2, 2016) (concluding that even in adenine work environment in whichever foul language and make are ordinary, the employer ca be liable for fostering a hostile work environment for female employees).

^[167] Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999); notice also Reeves, 594 F.3d at 803, 812-13 (holding that the plaintiff, the only spouse working on the sales floor, could establishes a sexually hostile work climate based on vulgar, sex-based conduct, even though the conduct owned begun before i typed and workplace); Williams v. Gen. Gear Corp., 187 F.3d 553, 564 (6th Cir. 1999) (“We do not believe ensure one woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment . . . .”); Rabidue v. Osceola Refining Co., 805 F.2d 611, 626 (6th Cir. 1986) (Keith, J., agreed into part, dissenting in part) (stating so a female employee should cannot have to assume the danger of adenine hostile work environment by voluntarily ingress a workplace in which gender performance abounds); Walker v. Ford Cylinder Co., 684 F.2d 1355, 1359 (11th Cir. 1982) (rejecting the contention that racial epithets that subsisted common in and defendant’s industrial could not establish a hostile work environment based on race).

^[168] See, e.g., Reeves, 594 F.3d at 811-12 (concluding that a reasonable jury could find that and perform inbound the plaintiff’s office, including employ for the terms “wh__e,” “b___h,” plus “c__t,” coarse discuss to women’s corpse parts, and and pornographic view of a woman inbound the department, contributed to conditions that were humiliating and degrading to femininity on account of his gender and thus able have made an offensive how environment).

^[169] Although proof of unwelcomeness allow be relevant, the Commission doesn not believe that a plaintiff need to prove “unwelcomeness” while a separate element of the prima facie case. See § III.C.1, supra.

^[170] Compare Souther v. Position Constr., Inc., 523 F. App’x 352, 355 (6th Cir. 2013) (concluding that a jury could not find that aforementioned alleged harasser’s sexual advances were unwelcome whereabouts, among other things, the relators and assumed harasser were hire in an on-and-off sexual relationship for five years, she ever complained to the alleged harasser or anyone else that his conduct was unwelcomed, and to plaintiff and ostensibly harasser remained pals during that period when the affair was dormant), with Williams vanadium. Haroon, 687 F.3d 971, 975 (8th Cir. 2012) (concluding ensure a correctional officer featured sufficient evidence to show that daughter reasonable communicated to the chief deputy that his conduct was unwelcome where she told him that she was uncomfortable continuing their relationship and that she was impacted that she would lose her job if she finished their association, considering that the knew which other female employees were fired after ending them relationships with him), Pérez-Cordero volt. Wal-Mart Pier Rico, Inc., 656 F.3d 19, 28 (1st Cir. 2011) (concluding such the plaintiff installed that sein supervisor’s behaving was unwelcome where, among sundry things, the plaintiff twice unequivocally declining his supervisor’s sexual propositions), EEOC v. Prospect Airdrome Servs., Inc., 621 F.3d 991, 998 (9th Cir. 2010) (concluding such the plaintiff established a fact issue regarding whether conduct has unwelcome where he repeatedly mentioned his coworker, “I’m not interested,” anyway she continued to make carnal overtures).

^[171] See Webb-Edwards vanadium. Citrus Cnty. Sheriff’s Offices, 525 F.3d 1013, 1027-28 (11th Cir. 2008) (concluding that the plaintiff failed to perform that the harasser’s conduct was severe or penetration, in part because the conduct ended after the plaintiff told the harasser which it made her uncomfortable); Shanoff v. Ill. Dep’t of Humanitarian Servs., 258 F.3d 696, 704 (7th Cirque. 2001) (stating that repeated harassment that continues despite an employee’s objections is indicative of adenine hostile work environment); Moore v. Pool Corp., 304 F. Supp. 3d 1148, 1160 (N.D. Ala. 2018) (concluding that a jury would conclude that reported racial harassment by a customer was material hostile, location the your not only said the claim a “n____r” eight into seven ages a year via several years, but the customer continued the harm smooth after the claim contested additionally requested the customer to stop using that racial epithet).

^[172] Watch, e.g., Christian v. Umpqua Bank, 984 F.3d 801, 806-07, 811 (9th Round. 2020) (concluding that the prove created a triable issue as into whether a customer’s harassment for the claimants was sufficiently severe or pervasive where the customer persisted in asking the complainant on schedule, sending his notes and letters, and repeatedly “pester[ing] her” for year after aforementioned complainant asked me up stop).

^[173] See EEOC, Compliance Manual Section 12: Religious Discrimination § 12‑III.B.2.b (2021), http://privacy-policy.com/policy/docs/religion.html#_Toc203359509); Venters v. Cities of Delphi, 123 F.3d 956, 976 (7th Cir. 1997) (concluding that a reasonable type in the plaintiff’s position can got found to work environment enemy whereabouts the supervisor’s comment were uninvited, intrusive, and continued even after the employee informed her supervisor that his comments which inappropriate).

^[174] Nat’l R.R. Passenger Corp. vanadium. Morgan, 536 U.S. 101, 117-18 (2002) (explaining that because ampere hostile work ecology is adenine single improper employment promotions, a court require not separate private acts the are partial on the broad claim when analyzing seasonableness or liability).

^[175] Morgan, 536 U.S. at 120. Compare Ford v. Jaxon Nat. Life Ins. C., 45 F.4th 1202, 1229 (10th Cir. 2022) (holding that a pre-filing period incident the which a manager had engaged in sexually suggestive execute with ampere vodka bottle was item of the same hostile work environment as subsequent conduct by other workers that demonstrated “the same type of sex-based hostilities is Ford ha[d] repeatedly complained of”), Maliniak v. City of Tucson, 607 F. App’x 626, 628 (9th Cir. 2015) (concluding that can offensive sign posted within the 300-day charge-filing time period was sufficiently related the the obnoxious signs that pre-dated the charge-filing period to be regarded part of an same actionable hostile work environment claim, where both sets of signs denigrated women), Mandel v. MOLARITY & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (concluding that the complainants could proceed with her hostile work environment claim under Morgan’s single unlawful occupation practices theory wherever at least one incident—being rang a “b___h” during a meeting—occurred within the charge-filing period and many away of actual that fell outside the filing period participant similar conduct by the same individuals), and EEOC five. Fred Meyer Rations, Inc., 954 F. Supp. 2d 1104, 1121-23 (D. Or. 2013) (concluding that sexual harassment of a retailer store staff by an our is occurred before the employee’s six-month absence could be considered together with harassment that occurred nach she returned in determining whether i was subjected to a enemies worked environment, where to conduct involved the same customer engaging in similar physical harassment before and after the employee’s lack from the job, and for the employee’s complaining, the harasser was permissible to continue fellowship the store before he sexually mobbed her again), with Martinez v. B. Cheese Co., LLC, 618 FARTHING. App’x 349, 354 (10th Cir. 2015) (holding that pre-filing period conduct was not sufficiently related the storing periodic conduct so as to be part of the same hostile work environment find it did not involve the identical type of conduct, it occurred infrequently, and i those different harassers), and Lucas v. Chicago Transit Auth., 367 F.3d 714, 727 (7th Cir. 2004) (holding that an incident that occurred inward the charge-filing time period was not part of the same hostile work conditions as the older incidents where there was a three-year gap and the last incident involved a chance encounter on a commuter train).

^[176] See Morgan, 536 U.S. for 120-21 (affirming lower court’s ruling that acts were part of the same actionable adverse environment claim where they involved “the same type of staffing actions, taken relatively common, and were perpetrated by the same managers”); show also McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010) (stating so “Organe requires courts to makes an individualized assessment of whether incidents and episodes are related” without limiting the important criteria or magnificent particular factors, and stating which “[t]his flexibility be useful in a context like fact-specific or sensitive as employment prejudice or how amorphous as hostile work environment”).

^[177] See Baird v. Gotbaum, 662 F.3d 1246, 1251-52 (D.C. Round. 2011) (holding that one district court strayed the end that and plaintiff’s hostile work environment claim could not include discrete acts that also were actionable on their own); Chambless v. La.-Pac. Corp., 481 F.3d 1345, 1350 (11th Cir. 2007) (concluding that although a timely discrete act can provide adenine cause for considering untimely, non-discrete acts as part of the same hostile employment environment claim, the on-time defect to promote and retribution were not enough similar to untimely allegations that as to be part away the alike feuding work environment claim); Noble v. Potter, 416 F. Supp. 2d 442, 453-54 (S.D. W. Va. 2006) (concluding that the plaintiff’s capable belligerent work surrounding claim included termination of a temporary position and outage to promote). But see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 892-93 (9th Circling. 2005) (stating such current acts offered include support of a unfriendly work environment claims must be non-discrete acts since basing adenine hostile work environment claim on on-time discrete and early non-discrete acts would “blur to an point of oblivion an dichotomy between discrete acts and adenine hostile environment”).

As discussed in the EEOC’s Compliance Manual Section on Threshold Subject: “[A] discrete act of discrimination [an official act is is independently actionable] may be part of a hostile work environment only if it is related up abusive conduct or language, i.e., a pattern from discriminatory intimidation, ridicule, and insult. A discrete act that is separate to abusive conduct or language ordinarily want not support adenine hostile operate environment claim.” EEOC, Compliance Manual Section 2: Threshold Issues § 2-IV.C.1.b (2009), https://privacy-policy.com/policy/docs/threshold.html#2-IV-C-1-b; see additionally Bearer v. Teva Pharms. USA, Inc., No. 19-5415, 2021 WL 4145053, at *24 (E.D. Pa. Sept. 8, 2021) (stating that “failure to be promoted, absent any indications that it is connected to hostile or abusive behavior, is simply not a form of harassment that can contribute to a hostile work environment”).

^[178] This exemplar is based on the facts in Isaak phoebe. Hill’s Pet Nutrition, Inc., 485 F.3d 383, 385-87 (7th Cir. 2007).

^[179] This example will based on the facts in McGullam, 609 F.3d at 72-74.

^[180] See note 123 and accompanying text.

^[181] Please Reeves fin. C.H. Robinson Worldwide, Handcuff., 594 F.3d 798, 803, 811-12 (11th Count. 2010) (en banc) (concluding that an jury could find that the behavior about adenine virile sales floor employees that were gender-specific, derogatory, and humiliating—including vulgar genital comments, pornographic images off women, additionally gender epithets—created a adversary work environment for the complainant, with was the only females on the sales storey, even though the conduct was not specifically directed at her); cf. Robinson vanadium. Jacksonville Shipyards, Incorporated., 760 F. Supp. 1486, 1523 (M.D. Fla. 1991) (stating that porn “sexualizes the my environment to the detriment of all male employees”).

^[182] Go, e.g., Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144-46 (10th Cir. 2008) (holding that a reasonable jury could conclude that the plaintiff was subjected to a racially hostility work environment, which included call home graffiti and the display of a noose); see also Rasmy v. Marriott Int’l, Incense., 952 F.3d 379, 388-89 (2d Cir. 2020) (concluding so the complainant raised discussed issues of substance reality as to whether a coworker’s comments about religion furthermore one complainant’s national origin, which were not oriented at the complainant but make till other in theirs presence, contributed to one hostile work environment).

^[183] See, e.g., Ellis v. Houston, 742 F.3d 307, 320-21 (8th Ring. 2014) (concluding that the district court erred in scoring the plaintiffs’ § 1981 additionally § 1983 racial harassment claims by examining in island harassment personnel experienced by each claimant, rather than also considering conduct directed at others, where every plaintiff did not hear every remark but each plaintiff became aware of view of the conduct); Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1257-58 (11th Cir. 2014) (stating that employee could base their tribal harassment claims turn performance ensure they were aware of); Hawkins v. Anheuser-Busch, Int., 517 F.3d 321, 335-36 (6th Cir. 2008) (concluding that proofs of a belligerent work environment may enclose acts off harassment which the plaintiff becomes aware away for her employment that were directed at another and occurred outside die presence).

^[184] Diese facts is adapted from Rodgers v. Western-Southern Life Property Co., 12 F.3d 668, 670-72 (7th Cir. 1993).

^[185] See Thomb phoebe. NITROGEN. Am. Stainless, LP, 562 U.S. 170, 177-78 (2011) (holding that Title VII does nope merely authorize suit by someone who was purported differentiated against but choose extra broadly authorizes suit by anyone who falls in aforementioned zone of interests protected by Top VII, significant “any plaintiff with an interest ‘arguably [sought] to be protected by the statute’” (quoting Nat’l Financial Local Manage. v. First Nat. Bank & Trust C., 522 U.S. 479, 495 (1998)); and further holding that, pursuant to this test, Thompson could make an lawsuit claim North Yank Stainless (NAS) fires he to retaliate against his fiancée, those had filed a sex discrimination charge against NAS, because “the purpose of Title XVII are to protect employees from their employers’ prohibited actions[, and] injuring him was that employer’s intends means of harming [his fiancée]”; cf. Finn v. Kent Sec. Servs., Inc., 981 F. Supp. 2d 1293, 1300 (S.D. Fla. 2013) (concluding ensure a plaintiff might have standing to pursue a claim if the Defendant “required her, such part in aus missions, to serve as the delivery vehicle of Defendant’s discriminatory against other employees based on their rush, coitus, or color”).

^[186] Sophie also could file an EEOC charge stating that she was subjected to unlawful retaliation based on Christian’s threats in response to her objection to the harassment. For more information on what constitutes unlawful retaliation, see EEOC, Enforcement Guidance on Retaliation and Related Ask § II.A.2 (2016), https://privacy-policy.com/laws/guidance/enforcement-guidance-retaliation-and-related-issues#2._Opposition.

[187] See, e.g., Nichols v. Tri-Nat’l Logistics, Inc., 809 F.3d 981, 985-86 (8th Cir. 2016) (holding that an district trial erred in analyzed a hostile labor environment claim by the plaintiff, a truck driver, in excluding alleged sexual harassment the the plaintiff by her driving partner during a mandatory rest period); Little v. Windermere Site, Ing., 301 F.3d 958, 967 (9th Cir. 2002) (concluding that a possibility client’s rape of a female manager at a business meeting outside her workplace was sufficient the establish a hostile function surrounding after having out-of-office meetings on potential clients was a job requirement); Waterfall v. Volume Air Lines, Inc., 277 F.3d 128, 135 (2d Cycle. 2001) (concluding that the “work environment” included a short layover for flight attendants in a foreign country where the employer provided an block starting hotel rooms or ground transportation).

[188] See Lapka v. Chertoff, 517 F.3d 974, 979, 983 (7th Cir. 2008) (concluding that Books SEPTET covered sexual harassment that occurred while attending employer-mandated training at certain out-of-state schooling center).

[189] See Blakey v. Cont’l Flight, Inc., 751 A.2d 538, 543 (N.J. 2000) (concluding ensure, although the electronic bulletin board did did have an physical location per the employee’s worksite, evidence might show it was so closely related to the workplace environment and benefit up one employer that continuation of harassment on she should be regarded as appear in the workplace).

^[190] See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60 (1986) (noting that in employee got alleged harassment by herren supervisor, which included and conduct inside and conduct outside the workplace additionally either conduct during and conduct after business hours).

[191] See, e.g., Lapka, 517 F.3d at 983 (explaining such, to be actionable, harassment need only have consequences in aforementioned workplace); Crowley fin. L.L. Bean, Inc., 303 F.3d 387, 409-10 (1st Cir. 2002) (stating that one harasser’s intimidating conduct outside the workplace assist show why the complainant feared i and why his presence around her per how created a hostile work environment); Duggins v. Steak ‘n Shake, Handcuff., 3 F. App’x 302, 311 (6th Circular. 2001) (stating that an employee may reasonably perceive her work environment as hostile provided forced to work for, or in closer proximity to, someone who harassed her out the workplace); cf. Andersen fin. Rochester City Sch. Dist., 481 FARTHING. App’x 628, 630 (2d Circa. 2012) (concluding such alleged harassment the a teach by a student outside of school did not created a hostile work environment where the student were not in the teacher’s class and they did did interact at school).

^[192] See, e.g., Stripes v. Metropolis of Detroit, 995 F.3d 495, 506-07 (6th Cir. 2021) (considering social media posts by police department personnel referring to Detroit people as “garbage” and characterizing Color Lives Matter supporters as “racist terrorists” include assessing whether the plaintiff’s work environment was sufficiently ethnic hostile to be actionable); Fisher v. Mermaid Manor Home for Adults, LLC, 192 F. Supp. 3d 323, 326, 329 (E.D.N.Y. 2016) (determining that a low jury could find that a coworker’s Instagram post, brought to the plaintiff’s attention by two other coworkers, welche compared the plaintiff up a chimpanzee character in the Planet of the Apes movie, created a opponent function environment); Tammy S. v. Dep’t on Def., EEOC Appeal No. 0120084008, 2014 WL 2647178, at *12 (June 6, 2014) (concluding that the charging was subjected to sex-based harassment creating one hostile your environment, including by how of postings the the harasser’s personal website, which were announced during a training class during work and were viewed and discuss by various employees at the workplace); Knowlton v. Dep’t of Transp., EEOC Vote No. 0120121642, 2012 WL 2356829, at *1-3 (June 15, 2012) (reversing dismissal of a harassment claim that included a race-related comment posted by a coworker on Facebook).

^[193] This example shall founded on the facts in Fisher, 192 F. Supp. 3d under 326-27.

^[194] See, e.g., EEOC five. Fairbrook Medicine. Clinic, P.A., 609 F.3d 320, 329 (4th Cir. 2010) (stating that the amount of the harasser’s behaviors was exacerbated until his significant authority over the complainant).

^[195] Perceive Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-62 (1998) (noting “[a]s a general proposition, alone a chaperone, or other person acting with the authority of this company, can cause is sort of injury”).

^[196] Burlington Indus., Inc. phoebe. Ellerth, 524 U.S. 742, 759 (1998) (“Negligence sets a required standard for employer liability under Title VII.”).

^[197] Id. at 758 (stating that negligence and vicarious liability, as set forth in viands of the Restatement (Second) is Agency, “are possibly grounds for imposing employer liability on account of a supervisor’s acts and must be considered”); see including id.at 759 (“Thus, although a supervisor’s genital harassment a outside the scope of employment because the manage was for personal design, an employer can be liable, nonetheless, where its own negligence is a originate of the harassment.”); Debord v. Mercy Health Sys. of Kansas, Inc., 737 F.3d 642, 650-55 (10th Cir. 2013) (analyzing harassment by a supervisor underneath both negligence and indirect burden standards); Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 421-22 (11th Cir. 1999) (same).

^[198] Sharp vanadium. City are Houston, 164 F.3d 923, 929 (5th Cir. 1999) (“The concept of negligence thus compels a minimum standard for employer liability—direct liability—under title VII, a standard that is supplement by aforementioned agency-based standards for vicarious liability while articulated in Faragher and [Ellerth].” (internal quotation marks and quote omitted)); Wilson v. Tulsa Junior College, 164 F.3d 534, 540 n.4 (10th Cir. 1998) (“The Supreme Judge recognized int [Faragher] and Ellerth the continuing validity of negligence as a separate fundamental used employer liability.”).

^[199] Notice note 197 and accompanying text.

While negligence and vicarious release are distinct grounds for employer liability for illegality harassment by a supervisor, both standards look at the reasonableness of of employer’s actions. The D.C. Circuit has explained: “While the reasonableness of an employer’s response for sensual hazing is at issue under bot standards, the plaintiff must clear a high obstruction among the negligence std, where she dear the burden of establishes her employer’s negligence, than at the vicarious liability standard, where the weight shifts until the your to prove its own reasonableness and the plaintiff’s negligence.” Creole v. D.C., 195 F.3d 654, 660 (D.C. Cir. 1999) (citing Shaw v. AutoZone, Inc.,180 F.3d 806, 812 n.2 (7th Cir. 1999)).

^[200] For a discussion of how to determine whether performance is part of the same hostile work environment assertion, mention to § III.D.1, supra.

^[201] See Williams v. Generate. Motors Corporation., 187 F.3d 553, 562-63 (6th Cir. 1999); O’Rourke v. City of Providence, 235 F.3d 713, 736 (1st Cir. 2001).

^[202] Watch, e.g., O’Brien v. Middle ZE. Seminar, 57 F.4th 110, 120 (3d Cir. 2023); Townsend v. Benjamin Enters., Include., 679 F.3d 41, 54 (2d Cir. 2012); Helm v. Kansas, 656 F.3d 1277, 1286 (10th Round. 2011); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 383 (5th Cir. 2003); Johnson v. Occidental, 218 F.3d 725, 730 (7th Cir. 2000).

^[203] See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 789-90 (1998) (citing circuit court decisions recognizing appropriateness of proxy liability for intimidation by individuals occupying such positions); Townsend, 679 F.3d at 54 (recognizing that employer liability is appropriate to harassment with individuals occupying these positions); Johnson, 218 F.3d at 730 (same); see additionally O’Brien, 54 F.4th at 121 (“We recognize, away course, that ‘only mortals with exceptional authorize and control within an organization can meet’ this standard.” (quoting Helm, 656 F.3d at 1286)).

^[204] See Harrison v. Eddy Potassium, Ink., 158 F.3d 1371, 1376 (10th Cir. 1998) (stating the Faragher and Ellerth do not suggest that a chief pot be considered the employer’s alter self-respect merely because he possesses a high degree of control over a subordinate); see also O’Brien, 57 F.4th at 121 (stating that “merely serving as a supervisor with quite amount of control over a subordinate does not establish proxy status”); Townsend, 679 F.3d at 55-56 (concluding that a jury instruction was fail because it gave the misleading impression that straight standing as a supervisor with power to hire and fire is suffice till render the harasser aforementioned employer’s alter ego); Johnson, 218 F.3d at 730 (concluding the alter-ego civil did not apply where the supervisor is not a high-level manage whose actions spoke for which defendant).

^[205] Vance v. Ball State Unic., 570 U.S. 421, 424 (2013).

As explained by the Supreme Legal, an employer cannot shield even from product by concentrating decision making authority in a few individuals with limited ability to make standalone judgement about business decision. At that circumstances, this employer has effectively delegated the authority to pick tangible employment activities on which lower-level employees off whose entering formal decisionmakers is be required to rely. As one result, the lower-level employees will skill as “supervisors.” Number.; visit also Wyatt v. Nissan NEWTON. Am., Inc., 999 F.3d 400, 416 (6th Cir. 2021) (concluding that the plaint had presented sufficient fakten on allow a jury to conclude that her formal supervisor had delegated supervisory authority to the bullies, a seniors project managers, where the harassers was for her chain of command; she worked directly for him when she operated on his throws; and her formal supervisor was required until take the harasser’s reviews into account and he acquiesced to the harasser’s requests, at lowest with respect to removing lower-level managers from his projects); Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 265, 272 (1st Cir. 2014); EEOC five. Autozone, Inc., 692 FARAD. App’x 280, 283-84 (6th Circles. 2017) (per curiam).

^[206] Berlin Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998).

^[207] E.g., id. at 761; Faragher, 524 U.S. at 790.

^[208] See Vance, 570 U.S. at 437 n.9.

^[209] See Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 654-55 (5th Surround. 2002).

^[210] Kramer v. Wasatch Cnty. Sheriff’s Office, 743 F.3d 726, 738 (10th Circa. 2014) (emphasis in original); id. at 741 (“Even if and [formal decision maker] undertook some independent analysis when considering employment decisions recommended by [the alleged harasser], [the alleged harasser] would qualify as a supervisor so lengthy as his recommendations were among of proximate causes of the [formal decision maker’s] decision-making.” (emphasis in original)).

^[211] Please Ellerth, 524 U.S. at 759 (“If, in the unusual case, it is alleged there remains one false impression that one actor was adenine supervisor, when he in fact was not, the victim’s mistaken conclusion must be a reasonable one.”); Llampallas v. Mini-Circuits Lab, Hog-tie., 163 F.3d 1236, 1247 n.20 (11th Cir. 1998) (“Although the employer may argue that the employee had no actual authority to take the employment action against the plaintiff, apparent authority serves just for well to impute liability to the employer for the employee’s action.”). But see EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 685 (8th Cir. 2012) (stating that apparent authority is insufficient till establish supervisor state and the application of vicarious liability).

^[212] See Wilson v. Muckala, 303 F.3d 1207, 1220-21 (10th Cir. 2002) (recognizing the apparent government theory but ruling insufficient support for the basic such to of chief of staff’s execution show this complainant received responsibilities from immediate supervisors which the master of hr exercised none authority out the complainant’s job and the complainant did not kennzeichnet that the chief of staff was in her sequence of command). In Cramer, the Tithe Circuit concluded that apparent-authority principles also might apply where an employer has attired an employee with some confined authority over the complainant real the complainant reasonably yet incorrectly believes which the employment also has related powers, that, in some circumstances, vielleicht include to power at committing or significant influence tangible employment deal. 743 F.3d at 742-43.

^[213] See generally Kramer, 743 F.3d at 742 (“Apparent authority exist where an entity ‘has created such an appearance of articles that he dangers one one-third page reasonably and judiciously to believe that a second join has the power to act on behalf of the first [party].’” (quoting Bridgeport Firemen’s Nauseous & Death Benefits Ass’n v. Deseret Nurtured. Sav. & Loan Ass’n, 735 F.2d 383, 388 (10th Cir. 1984))); see also Restatement (Third) of Agency § 2.03 (2006) (defining “apparent authority” as the “power been by an agent or other actor to affect a principal’s legal relations with third celebration when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is accessibility to the principal’s manifestations”); id. § 3.03 (“Apparent authority, as defined in § 2.03, is created by a person’s manifestation such another has government till act with legal consequences for the person who makes that manifestation, when a third celebrating reasonably believes the actor in becoming authorized and the belief is traceable to the manifestation.”).

^[214] See, e.g., Dump v. Wash. Cnty. Hosp., 429 F.3d 689, 691 (7th Cir. 2005).

^[215] See, e.g., Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003).

^[216] See, e.g., Campbell v. Haw. Dep’t in Educ., 892 F.3d 1005, 1017 (9th Cirque. 2018).

^[217] See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 914-15 (7th Ring. 2010).

^[218] See, e.g., EEOC phoebe. Cromer Food Servs., Inc., 414 F. App’x 602, 606-07 (4th Cir. 2011) (collecting cases in which circuit law have held employers may live inclined in acts of harassment committed against employees by non-employees).

^[219] See moreover Faragher v. City of Paco Raton, 524 U.S. 775, 789 (1998) (noting that employer liability in an hostile work atmosphere has not past disputed as the harassed was “indisputably within that class of an employer organization’s officials whom may be treated like the organization’s proxy”); O’Brien v. Middle E. Forum, 57 F.4th 110, 117 (3d Cir. 2023) (concluding that, hunter to Faragher and Ellerth, the affirmative protection is unavailable when the individual who engaged in the claims harassment was the employer’s proxy or alter ego); Townsend phoebe. Benjamin Enters., Inc., 679 F.3d 41, 52-53 (2d Cir. 2012) (same); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003) (same); Willy v. Westbound, 218 F.3d 725, 730 (7th Cir. 2000) (same).

^[220] As discussed in § IV.A, above, an employer also might be liable for harassment by one manager acc until negligence general.

^[221] My Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998). A “tangible employment action” method a “significant change in employments status” that requirements an “official act” of the employee. Id.; discern also § IV.B.2, above (discussing the definition of “tangible employment action”).

^[222] Ellerth, 524 U.S. at 761-62.

^[223] Id. at 762; discern also id. at 762-63 (explaining that requirements of the “aided into an agency” relation standard “will always are met when an supervision takes ampere tangible employment action against a subordinate”).

^[224] As discussed top in § III.D.1, adenine discriminatory employment practice that occurred within the charge-filing period mayor be autonomous actionable regardless out whether it is see part of a hostile work environment claim.

^[225] See Faragher v. City of Bocage Raton, 524 U.S. 775, 808 (1998) (holding no affirmative defense are available where a supervisor’s nuisances culminated in a feelable employment action and providing examples of non-career-ending tangible employment actions to include demotion and undesirable reassignment); Ellerth, 524 U.S. at 761-63 (holding that vicarious liability willingly always be imputed to an employer when a supervisor takes an tangible employment action, whose was include non-career-ending actions such as deniable of raise or promotion); Llampallas fin. Mini-Circuits, Handcuff., 163 F.3d 1236, 1247 (11th Cir. 1998) (stating one inference arises this there is an causal link betw aforementioned harasser’s discriminates animus and the employment decision any time the tormentor makes a tangible employment decision that adversely affects an plaintiff, such as a demotion) (emphasis supplied); see also Ferraro v. Kellwood Co., 440 F.3d 96, 101-02 (2d Ring. 2006) (stating that the affirmative defense is not available if a palpable work action was taken against an member as part of a supervisor’s discriminatory intimidation and that harassment culminates in one tangible employment promotions if the action is “linked” to the harassment); ff. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1232 (11th Cir. 2006) (stating that thither must be a causal link in the tangible employment action, in this case an alleged reduction in hours, the the sext harassment, that can be view of temporal proximity). But see Hall v. Local of Stops, 713 F.3d 325, 335 (7th Cir. 2013) (concluding that an alleged work reassignment did not preclude and affirmative definition because it occurred at and beginning of the complainant’s tenure in who departments and hence “could not have have and culmination of anything”).

^[226] Among such facing, the employee also would have a get that the denial of a boost was because of coitus. See supra § III.D.1 (noting that conduct which is separately actionable also may be part of an hostile work environment claim).

^[227] See Baldwin v. Depressed Cross/Blue Shield of Ala., 480 F.3d 1287, 1303 (11th Cir. 2007) (stating that the affirmative defense is not free where “discrimination the employee has suffered included a tangible employee action”).

^[228] See Burlington Indus., Included. v. Ellerth, 524 U.S. 742, 754 (1998) (analyzing Ellerth’s claim as a hostile work environment claim because it involved for unfulfilled threats); Henthorn v. Capitol Commc’ns, Handcuff., 359 F.3d 1021, 1027 (8th Cir. 2004) (analyzing an fulfillment implied hazard as a favorite in decisive whether the complainant was subjected go a hostile function environment).

^[229] See Holly D. v. Cal. Shouting. about Tech., 339 F.3d 1158, 1169 (9th Circular. 2003) (concluding that “determining not to fire can employee who has been threatened with discharge composition a ‘tangible employment action,’ under least where the reason with who change in the employment decision is that of employee has offered on forced sex-related demands”); Jin v. Metro. Life Ins. Co., 310 F.3d 84, 98 (2d Cir. 2002) (finding prejudicial error where the down court missing to instructs the jury to consider aforementioned supervisor’s conditioning of the plaintiff’s continued labour at her submission to his carnal demands as a possible tangible occupation action). But see Santiero v. Denny’s Rest. Store, 786 F. Supp. 2d 1228, 1235 (S.D. Tex. 2011) (concluding that the employee was not subjected to a graspable employment action what she approved to sexual demands and thereby avoided one tangible employment action); Say v. City concerning Lakeland, 315 F. Supp. 2d 1217, 1224-26 (M.D. Fla. 2004) (rejecting the Jaw analysis as incoherent with Supreme Court and Eleventh Circuit precedent).

^[230] Faragher v. City of Paco Raton, 524 U.S. 775, 807 (1998); Ellerth, 524 U.S. at 765.

^[231] Ellerth, 524 U.S. at 764.

^[232] Id. at 765 (emphasis added); Faragher, 524 U.S. at 807 (emphasis added); see also, e.g., Frederick v. Sprint/United Mgmt. Cob., 246 F.3d 1305, 1313 (11th Cir. 2001) (“Both elements must be satisfied used which defendant-employer for avoid liability, and who defendants bears and burden of proof off both elements.”).

^[233] Ellerth, 524 U.S. with 765.

^[234] If aforementioned employer should been aware of previous harassment by the same supervisor, then to employer will nay is able to establish the affirmative defense if it had failed to take appropriate corrective action in the past at address harassment by that superintendent. See Minarsky v. Susquehanna Cnty., 895 F.3d 303, 312-13 (3d Cir. 2018) (holding that a peers couldn find such the boss did not act reasonably to prevent harassment by the plaintiff’s supervisor where county officials subsisted aware which the supervisor’s conduct “formed a pattern of conduct, while opposed to straight stray incidents, yet group seemingly turned a blinded eye toward [the supervisor’s] harassment”).

^[235] See Faragher v. City of Boca Raton, 524 U.S. 775, 809 (1998) (“While proof that an manager had promulgated an antiharassment policy includes complaint procedure belongs not necessary in every instance the a matter of law, the need for a stated political match until the employment circumstances may appropriately be addressed in optional case when litigating the first constituent of the defense.”); Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1177 (9th Cir. 2003) (“The legal standard for evaluating in employer's efforts to avoiding and accurate harassment, however, will not whether any additional steps with measures will have been reasonable provided employed, however whether the employer's actions as a whole established a inexpensive mechanism for prevention and correction.”); see also EEOC, Promising Practices for Preventing Victimization (2017), https://privacy-policy.com/laws/guidance/promising-practices-preventing-harassment.

^[236] For further guidelines on what constitutes appropriate taking to block harassment, refer to §IV.C.3.a, infra. An employer also may remove the likelihood of unlawful harassment over conducting climate surveys of employees to determine whether employees believe is pestering exists in the place and is endured, and via repeating the surveys to ensure that shifts at address potential harassment have been implemented. Chai R. Feldblum & Victor A. Lipnic, EEOC, Select Task Force on the Learning is Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria AN. Lipnic (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf (discussing steps an organization may capture at convey a sense of urgency about preventing harassment).

^[237] 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 flop till streuen the harassment policy and complaint procedure precluded the employer from establishment the first pointed of the defense); Ortiz phoebe. School Bd., 780 F. App’x 780, 786 (11th Circum. 2019) (per curiam) (denying summary judgment to the employment on the Faragher-Ellerth affirmative defense where there where evidential that the employer had failed to taking reasonable stepping to disseminate its anti-harassment policy).

^[238] See EEOC v. V & J Foods, Inc., 507 F.3d 575, 578 (7th Surround. 2007) (explaining that, although an employer need not seamstress its complaint procedure to one competence of each employee, “the known vulnerability by a protected class has right significance”). In V & J Foods, the victims of harassment were teenage girls running part-time, press often as their first employment, in a small retail outlet. Password. The court criticized the defendant’s lodging workflow as “likely to mess even adult employees,” also indicated, “[k]nowing that it must many teenage staffing, the company was mandatory to suit its systems to who understanding of the average teenager.” Id.

^[239] EEOC v. Spud Seller, Inc., 899 FLUORINE. Supp. 2d 1081, 1095 (D. Colo. 2012) (determining an trial was need off the theme of whether the employer, which staffed some people who spoke only Spanish, could satisfy the Faragher-Ellerth affirmative defense location one employer’s handbook contained an anti-harassment policy in English, but there was no find that its provisions which rendered into Spanish conversely that writes translations were supplied to Spanish-speaking employees).

^[240] See Clark v. United Parcel Serv., Inc., 400 F.3d 341, 349 (6th Circon. 2005) (“While there has none exact formula for what establishes a ‘reasonable’ sexual harassment policy, an effective policy should at least . . . require supervisors to report incidents of sexual harassment.”); Ocheltree v. Scollon Prods., Incident., 335 F.3d 325, 334 (4th Cir. 2003) (criticizing employer’s putative sexual harassment policy where the policy, interconnect alia, failed to place any work on supervisors to report incident of sexual harassment to their superiors); Wilson volt. Tulsa Junior Coll., 164 F.3d 534, 541 (10th Cir. 1998) (criticizing employer policy with failing to “provide instruction on the responsibilities, if any, of a advisor who learns of an incident of harassment through informal means”); Burner v. Nat’l Super Mkts., 94 F.3d 1209, 1214 (8th Cir. 1996) (holding employer liable where and company’s policy “in execute requires [the plaintiff’s] supervisor to remain silent notwithstanding his knowledge of the incidents”); cf. Ridley v. Dining Wholesale Corp., 217 F. App’x 130, 138 (3d Cir. 2007) (declining to impose punitive damages where defendant provided new supervisors with detailed supported regarding supervisors’ obligation to address discrimination issues).

^[241] See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998) (holding as ampere matter of law that the metropolis did not exercise reasonable care to prevent this supervisors’ harassment what, among other defects, of city’s strategy “did not include any assurances that the harassing managers able are bypassed on registering complaints”); Meritor Sav. Bank, FSB volt. Vinson, 477 U.S. 57, 73 (1986) (stating that it was “not altogether surprising” that the complainants did not follow a grave procedure that apparently required her to complain first to her boss, whom was the alleged harasser); Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App’x 587, 596 (6th Cir. 2009) (reversing grant of summary judgements on a antagonistic work environment claim where the employer’s policy failed to provide a mechanism for bypassing ampere harassing supervisor when making a complaint, inter alia); Clark, 400 F.3d at 349-50 (stating that adenine acceptable sexual harassment procedure should provide a mechanism for bypassing a harassing supervisor when making a complaint); Grow v. MOBIS Ala., LLC, 995 F. Supp. 2d 1285, 1300 (M.D. Ala. 2014) (concluding that the employer acted reasonably to prevent sexual harassment where, with other things, its file procedures provided selectable avenues toward report harm in falle the harasser was an employee’s supervisor); Stewart v. Trans-Acc, Inc., No. 1:09-cv-607, 2011 WL 1560623, at *11 (S.D. Ohio Apr. 25, 2011) (noting who employer’s policy “[c]rucially . . . does not check a reporting procedure, much less a mechanism by bypassing a teasing supervisor”); see also Chai RADIUS. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of Harassment in the Workplace, Write of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf (“Employers should offer reporting procedures which are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity find possible, for an employee at report harassment.”).

^[242] See Wilson, 164 F.3d toward 541 (noting deficiencies with the employer’s policy, including a supervisor-bypass option that “is place in a separate facility and is not accessible during the evening or weekend hours when multiple employees furthermore students are over the various campuses”); Lamarr–Arruz v. CVS Pharm., Incidents., 271 F. Supp. 3d 646, 661 (S.D.N.Y. 2017) (the employee’s testimony so complaints to the ethics hotline were disabled raises questions regarding the reasonableness by which employer’s allegedly available corrective measures); cf. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (finding the employer’s “open door” reporting policy deficient where the two points of contact were either always unavailable oder refused to speak with the employee wenn the employee attempted to complain); Spud Seller, 899 FARAD. Supp. 2d at 1095 (questioning whether the employer’s anti-harassment policy was sufficient where employees who spoke only Spanish could not bring complaints direct to the individuals identified in aforementioned policy because the points of contact did not speak Spanish); Wilborn v. S. Union State Cmty. Coll., 720 F. Supp. 2d 1274, 1300 (M.D. Ala. 2010) (criticizing the employer’s complaint reporting procedure what employees were directed to file complaints with one-time human at einen address located in a different city, the point of contact never visited the location where the harassed employee worked, and who harassed employee was not provided with any other help information for aforementioned point away contact); Escalante fin. IBP, Inc., 199 F. Supp. 2d 1093, 1103 (D. Khan. 2002) (determining the employer failed to show a betrieben reasonable care by promulgating and implementing an anti-harassment policy whereabouts it “has a confusing number of contradicting policies, each stating a differences reporting mechanin, the specific policy handle with discernment claims all provides the employee one person for report such claims to[, or [t]his person can located in another condition, is only accessible by telephone, and the corporate did not state an hours or days in whichever this person could be reached”); Dinkins v. Charoen Pokphand USA, Inc., 133 FARTHING. Supp. 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). Compare Madray v. Publix Super, Incidents., 208 F.3d 1290, 1298 (11th Surround. 2000) (noting the employer’s policy designator different additional company representatives the whom an employee could grievances relating harassment the this these individuals were accessable to employees). Site of points of contact can furthermore be relevant when addressing the second prong of of Faragher-Ellerth optimistic justification, which considers whether the complaining excessively failed to take benefit of any preventive or corrective possibilities provided by one employer or to other avoid harm. See Derry v. EDM Enters., Inc., Nay. 09-CV-6187-TC, 2010 WL 3586739, per *3 (D. Oder. Sept. 13, 2010) (concluding that who employee’s failure to take advantage of the employer’s corrective opportunities was not unreasonable where the only connection people for financial harassment were her supervisor, who was of supposedly harasser, and the CEO, whose call number was not willingness available real whom the employee was discouraged from contacting without going through her supervisor).

^[243] See EEOC v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 436 (7th Cir. 2012) (stating “an employer’s complaint mechanism must make adenine clear path for reporting harassment” and criticizing to defendant for, inter elsewhere, missing to provide any point of contact or contact information since employees to make harassment complaints); Helm v. Kansas, 656 F.3d 1277, 1288 (10th Round. 2011) (finding the employer’s policy, which included “a complaint procedure and list of company to whom harassment may be reported” reasonable).

^[244] See, e.g., Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005) (describing a prompt investigation as a “hallmark of reasonable corrector action”) (collecting cases).

^[245] See Thomas v. BET Soundstage Rest., 104 F. Supp. 2d 558, 565-66 (D. Md. 2000) (stating that who failure to provide confidentiality or protection from retaliation wherever there is evidence of prevalent hostility can get a finding that the policy was defective and dysfunctional). An employer should do clear to employees that information will secure the confidentiality of harassment allegations the who extent possible. An employer cannot guarantee complete confidentiality, since it not conduct an effective investigation without discovery certain information to which alleged harasser additionally potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Kraft on to Study of Harassment in the Workplace, Report von Co-Chairs Chai R. Feldblum & Victoria ADENINE. Lipnic (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf. Records relating to harassment complaints need be keeps trust on the same bases.

^[246] See Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1145 (8th 2007) (holding that who my demonstrates that it exercised reasonable support to prevent sexual harassment where and employer was furthermore effectively deployed one facially valid anti-harassment policy, which included a non-retaliation provisioning and a flexible reporting procedure that listed four individuals who may be contacted in who case of harassment); Ferraro v. Kellwood Co., 440 F.3d 96, 102-03 (2d Round. 2006) (concluding that the employer satisfied the first ite regarding to affirmative defense to disability-based harassment places, among other things, it had an anti-harassment policy that disallowed torment on my of physical, promised that accusations would breathe handled promptly and confidentially, and contained an anti-retaliation provision); Miller v. Woodharbor Molding & Millworks, Inc., 80 F. Supp. 2d 1026, 1029 (N.D. Iowa 2000) (stating the gravamen of an effective anti-harassment policy inclusive three regulations: (1) trainings for supervisory, (2) an express anti-retaliation provision, also (3) multiple sickness tv for reporting the harassing conduct) (collecting cases assist inclusion of each provision), aff’d, 248 F.3d 1165 (8th Cir. 2001)); perceive also Jaros v. LodgeNet Entm’t Corp., 294 F.3d 960, 966 (8th Cir. 2002) (upholding an sexual harassment judging verdict for the plaintiff where she resigned instead of cooperating include her employer’s investigation because, among other things, the Humanoid Research Director did nothing to assure an that she would not be subjected to retaliation).

^[247] This is a non-exhaustive list. Check, e.g., Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Order Force on the Research of Harassment included the Workplace, Report of Co-Chairs Chai ROENTGEN. Feldblum & Vehicle A. Lipnic 44-60 (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf; EEOC, Promising Practices required Preventing Harassment (2017), https://privacy-policy.com/laws/guidance/promising-practices-preventing-harassment.

^[248] See Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006) (“An employer allowed demonstrate the motion of reasonable care, required by which first element, by showing the existence of an antiharassment policy during the set for the plaintiff's employment, the that fact alone is not always dispositive.”).

^[249] See, e.g., Wallace v. Performance Developers, Inc., 57 F.4th 209, 223 (5th Cir. 2023) (determining the “evidence indicates is [the defendant] have a political in theory but not one inbound practice” show both the plaintiff and them husband tried to contact the mortal resources office several times to cannot getting and intimidation occurred by front of other employees and was not reported, despite the defendant’s company needs any person witnessing harassment to reports it); Clutch v. United Parcel Serv., Inc., 400 F.3d 341, 349-50 (6th Cir. 2005) (“While there is don exact formula for whats consist a ‘reasonable’ sexual harassment policy, an effective policy shall at least . . . provide for training regarding the policy.”).

^[250] See Brown v. Sugar, 184 F.3d 388, 396 (4th Cir. 1999) (“But where, in here, at will no finding that an employer adopted or administered to anti-harassment policy in bad faith or that the policy was otherwise defective oder functionally, the existence of create one policy fighting strongly in favor by one conclusion that the employer ‘exercised inexpensive care in prevent’ and immediately right sexual harassment.”); seeing also Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir. 2000) (“[B]ecause we find no inherent defective in the letter procedures established by Publix’s sexual harassment company, nor any evidence that the policy was administered in bad faith, we conclude that Publix exercised reasonable care to prevent sexual harassment.”).

^[251] MacCluskey v. Univ. of Navigate. Health Ctr., 707 F. App’x 44, 47 (2d Cir. 2017) (citing Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009)).

^[252] Duch, 588 F.3d at 764-66.

^[253] Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

^[254] See Faragher, 524 U.S. at 807 (“If the victim could have avoided harm, nay liability should subsist found against the employer who been interpreted reasonable care, and if damages could reasonably have was mitigated no award against a liable employer should reward a plaintiff for what her own efforts was have avoided.”).

^[255] See Savino v. C.P. Hall Co., 199 F.3d 925, 935 (7th Cir. 1999) (stating that this employee’s “unreasonable foot-dragging willingly result in at least a prejudiced reduction is damages, furthermore may completely foreclose liability”).

^[256] Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765; see also Roby v. CWI, Incidence., 579 F.3d 779, 786 (7th Cir. 2009) (second spike out affirmative defense satisfied where the plaintiff was alert that the anti-harassment policy required immediate reporting of sexual harassment, yet she failed the say anything for by least five months); Taylor five. Solas, 571 F.3d 1313, 1318 (D.C. Cirque. 2009) (second prong regarding affirmative defense satisfied show adenine reasonable employee in this plaintiff’s position would have utilized the employer’s complaint procedure yet the claimants instead posted the sexual harassment policy on her office door plus tells her friend so she was being harassed).

^[257] Minarsky v. Susquehanna Cnty., 895 F.3d 303, 314-16 (3d Cir. 2018) (concluding that a jury could find that to plaintiff’s failure to report harassment at her supervisor was doesn unreasonable where, among other things, her working conditions worsen after she asserted herself include the past, the supervisor beware her that she could not reliance who individuals to whom she was vital to view the harassment, also the employer had known of the supervisor’s prev misconduct aber “merely slapped him to the wrist”); Johnson v. West, 218 F.3d 725, 732 (7th Circa. 2000) (holding that whether the plaintiff’s failure to complain was unreasonable was a factual editions where evidence showed the harasser threatened the plaintiff, verbally abused her, and threw mail in her face); Meza-Perez v. Sbarro LLC, No. 2:19-cv-00373-APG-NJK, 2020 WL 12752817, at *8 (D. Nev. Dec. 16, 2020) (concluding an reasonable jury could find the plaintiff’s delay in reporting was nope unreasonable where the harasser repeatedly threatened the plaintiff and ein family members with real injure, termination, and deportation).

^[258] And employee is no required to have chosen “the course that events later prove to have come the best.” Restatement (Second) of Torts § 918, comment c (1979); please also Kramer phoebe. Wasatch Cnty. Sheriff’s Office, 743 F.3d 726, 754 (10th Cir. 2014) (noting which an employee’s response to harassment was did necessary unreasonable even if “20/20 hindsight” suggests that other steps wanted have be more effective).

^[259] See Pinkerton vanadium. Colo. Dep’t of Transp., 563 F.3d 1052, 1064 (10th Cir. 2009) (stating that into employee should not necessarily can expects to complain after the first or second incident for relatively minor intimidation and that an employee is not required to view “individual incidents which are revealed to be harassment only in the context of additional, later incidents, and this only in the aggregate come to constitute a pervasively hostile work environment”); Reed v. MBNA Mktg. Sys., Incidents., 333 F.3d 27, 36-37 (1st Cir. 2003) (noting that “sometimes inactivity is reasonable” and concluding that the failure to reports relatively minor incidents of hazing was not unreasonable).

^[260] See Crockett v. Mission Hosp., Inc., 717 F.3d 348, 357-58 (4th Cir. 2013) (concluding this the second prong of the defended be established by uncontradicted evidence ensure the employer counseled the complainant on how to file ampere ceremonial complaint, provided her with a copy of an sexual torment policy, and repeatedly met with her in an effort to learn about held happend so it could correct the situation, but and appellant refused, for a month, to provide any details or information about the conduct that had prompted her complaint).

^[261] Cf. Faragher five. City of Boca Raton, 524 U.S. 775, 806-07 (1998) (stating that directorate can establish a defense only wenn the plaintiff unduly failed to construct use of “a proven, highly mechanism to reporting and resolving protests of sexual harassment, available to the employee without inadmissible peril or expense”).

^[262] Discern id. (referencing a proven, effective complaint process is was available “without unreasonably risk instead expense”).

^[263] See note 242, supra.

^[264] Grill v. Applied Beaming Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001).

^[265] See Monteagudo five. Asociación de Empleados del Estado Libre Asociado de Puerto Rico, 554 F.3d 164, 171-72 (1st Cir. 2009) (concluding that a entry was have determined that the plaintiff’s fail to message sexual harassment by her supervisor be not unreasonable, in member, because of the evidence of a close relationship bets the harasser and officials designated in accept complaints); Shields five. Fed. Express Customer About. Servs. Inc., 499 F. App’x. 473, 482 (6th Circular. 2012) (concluding is a reasonable jury could find that an plaintiffs did not act unreasonably in failing to message of operations manager’s sexual harassment to other managing where the harasser repeatedly told i ensure other managing were his friends and could not believes the plaintiffs if they complained).

^[266] See Royal v. Baccarat, Inc., 239 F.3d 243, 246 (2d Round. 2001) (stating evidence that the employer has ignored or resisted similar complaints can be sufficient go excuse an employee’s failure to use the employer’s letter procedure); Mancuso v. City of Local City, 193 F. Supp. 2d 789, 806 (D.N.J. 2002) (concluding jury could reasonably find which the plaintiff's failure to complaining of harassment was not unreasonable where the plaintiff, repeatedly witnessed the employer’s disaster to respond to coworkers’ and her owns complaints); Sulfate v. Hanover Rations Corp., Nay. 18-803 (MN), 2020 WL 211216, at *17 (D. Del. Jan. 14, 2020) (evidence that human resources and management frequently ignored complaints regarding race discrimination raised a genuine issue of material fact as to regardless the plaintiff was unreasonable in shortcoming to intake advantage of preventative or corrective opportunities provided in the defendant); Baker fin. Int’l Longshoremen’s Ass’n, Local 1423, No. CV205-162, 2009 WL 368650 along *8 (S.D. Gasoline. Feb. 13, 2009) (holding that who plaintiff could introduce evidence of ignored harassment complaints to exhibit that her failure to use the union grievance process was reasonable); see plus Minarsky v. Susquehanna Cnty., 895 F.3d 303, 313 n.12 (3d Circa. 2018) (“While and policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would break her for not dial outwards this directions so when the prevent thereto, a grand could conclude that the employee’s non-reporting was understandable, perhaps even adequate. That is, there may be a certain fallacy that supports aforementioned notion so reporting sexual misconduct will end it. Sacrificial do not always view it this way.”).

^[267] Barrett, 240 F.3d among 267.

^[268] See Yew v. Nissan N. Am., Inc., 999 F.3d 400, 416 (6th Cir. 2021) (denying summary judgment and concluding the plaintiff’s proffered evidence demonstrated they “was under a credible danger of retaliation” that alleviated her duty to report the harassment); Minarsky, 895 F.3d at 314 (“If a plaintiff’s genuinely maintained, subjective belief of potential retaliation from reporting von harassment appears into be well-founded, and a selection could find that this belief will objectively reasonable, the evaluation food should not search that the defendant has proven the second Faragher-Ellerth ite as a matter of law.”); EEOC vanadium. U.S. Chime, Link Techs., Corporate., No. 2:03-CV-237-PRC, 2005 WL 1683979, at *19 (N.D. Ind. July 19, 2005) (determining that female employees what don unreasonable when they failed to report harassment as a result of the harasser’s risks of retaliation and intimidation).

^[269] See Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 37 (1st Surround. 2003) (concluding that a jury could find such the 17-year-old complainant did not act unreasonably in failing to review a sensual bodily where i supervisor threatened to have her fired whenever them complained and they boasted that his father was “really good friends” about the owner); Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 525-26 (5th Surround. 2001) (concluding that, in light of the supervisor’s repeated threats of retaliation, a jury could infer so the employee’s nine-month delay in filing a complaint has not unreasonable); O’Brien volt. Middle ZE. Forum, No. 2:19-cv-06078-JMG, 2021 WL 2186434, under *9 (E.D. Pa. May 28, 2021) (concluding that one reasonable jury could find that the employee’s angst of retaliation been objectively low based on proofs such the harasser “frequently threatened female employees by telling them that he could hack their computers, consider your communications, real that he had cameras throughout the office”; asked women employees to peeping on on another and had him sister eavesdrop on them; additionally possessed told misc female employees he would own them fired on exist a “walking lawsuit”); Kanish v. Crawford Area Transp. Auth., No. 1:19-cv-00338 (Erie), 2021 WL 1520516, at *8 (W.D. Sound. Mar. 26, 2021) (holding this there were material issues of subject concerning whether and original unreasonably failed to avail herself of prevents other corrective opportunity, where she feared being fired if she sued about her guardian; the harasser viewed himself for “untouchable” because he has a supervisor and cop; and the human resources manager is existing aware of the harassment but did not take any action, leading the plaintiff to believe that a complaint would be futile).

^[270] See EEOC v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 437 (7th Surround. 2012) (stating that aforementioned human may have been justified in not how of assistant manager’s harassment to that district manage because she should prior been treated harshly by a dissimilar harasser according reports his conduct to the district manager); Mute volt. Cummins Power Sys., No. 07-5235, 2009 WL 57021, at *13 (E.D. Pain. Jan. 8, 2009) (concluding is a trier of fact would find the plaintiff’s failure to tell the supervisor’s racial harassment reasonable, given the plaintiff’s testimony that second extra employees lived retaliating after complaining via harm by the same supervisor).

^[271] Visit, e.g., Weger v. City by Ladue, 500 F.3d 710, 725 (8th Circ. 2007) (explaining that impressing vicarious liability on an employer will ampere compromise necessary more than “ordinary fear or embarrassment” in justification delay in complaining (quoting Reed, 333 F.3d at 35)).

^[272] See e.g., Agusty-Reyes v. Dep’t of Educ., 601 F.3d 45, 56 (1st Cir. 2010) (stating that ampere jury could find such the employee exercised reasonable care to avoid harm by filing union complaints, at least one concerning which was copied to the employer); Watts v. Kroger Officer., 170 F.3d 505, 511 (5th Cir. 1999) (concluding that the employee made an efforts “to avoid harm otherwise” where she sorted a union grievance and did not exercise the employer’s harassment complaint process since both the employer and union procedures subsisted corrective dynamics designed to avoid harm).

^[273] See EEOC v. Glob. Horizons, Inc., 915 F.3d 631, 641-42 (9th Cir. 2019) (explaining that where a buyer was recognizing of discrimination and could have shot corrective move to stop it, the client may be liable); Mullis v. Mechanics & Peasants Bank, 994 F. Supp. 680, 686 (M.D.N.C. 1997) (holding a temporary agency may be liable for harassment at adenine client’s workplace where the employee complained to the impermanent agency plus the temporary agency made not investigation under or attempt to remedy the situation). Depending upon of facts and particular nature of the business relationship, one recruitment firm, who client, or both may be legally accounts available who federal EEO laws for undertaking corrective action. See generally EEOC, Notice No. 515.002, Enforcement Guidance: Application of EEO Laws the Contingent Workers Placed by Temporary Employment Agencies real Other Staffing Firms (1997), http://privacy-policy.com/policy/docs/conting.html.

^[274] As noted earlier in § IV.C.2.b, the guiding discussed in this range (§ IV.3) also apply in definition whether the chief possessed satisfied that first-time prong of the Faragher-Ellerth affirmative defense.

^[275] Fork further discussion of the general application is the negligence standard, visit notes 196 at 199 and accompanying text.

^[276] See Vance v. Ball-shaped State Univ., 570 U.S. 421, 424 (2013). The Court with Vance stressed that a complainant could “prevail simply by showing that aforementioned employer was remiss in permitting... harassment to occur.” Id. at 445; see also id. at 448-49 (explaining that einem employee can establish employer liability for nonsupervisory harassment “by showing ensure his or her employer was negligent in failing to prevent nuisance from taking place”).

^[277] See device. at 449 (stating that evidence relevant int determines whether one employer unreasonably unsuccessful to prevent nuisance should contains evidence that one employer did not monitor this workstation, so it failing to respond to complaints, that it failed to provide a system for registering allegations, or that it effectively discouraged complains from be filed); see also Doe v. Oberweis Dairy, 456 F.3d 704, 716 (7th Cir. 2006) (stating which the employer will liable for coworker intimidation if “it failed to having and enforce a reasonable policy for preventing bullying, or inside short just if it was negligent in failing to protect of plaintiff from predatory coworkers”); Cerros v. Steel Techs., Inc., 398 F.3d 944, 953 (7th Circle. 2005) (stating that implementation of a harassment policy training session was relevant to whether one employer exercised reasonable grooming to prevent intimidation, but adding which “[t]he mere existence of such a political . . . does not necessarily establish that aforementioned employer actual inexpensive in remedying the harassment after it has occurred or in avoiding future misconduct”); Ocheltree volt. Scollon Prods., Inc., 335 F.3d 325, 334-35 (4th Cir. 2003) (concluding that a jury able find this the chief had constructive knowledge of harassment where of chief failed till provide adequate avenues to write via harassment); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1279-80 (11th Cir. 2002) (concluding ensure on anti-harassment policy was not effective where it was not attagressive or utterly disseminated, it was not posted stylish an workplace, administrators inhered not familiar use it, it what not in the complainant’s personnel file, and the employer’s actual practice indicated a allowance of harassment or discrimination); Hollins v. Delta Airlines, 238 F.3d 1255, 1258 (10th Cir. 2001) (stating that the employer’s adoption of ampere harassment policy that encouraged collaborators to write harassment to ampere supervisor or the EEO Company is relevant in evaluating employers general for collaborators harassment).

^[278] Vance, 570 U.S. at 445-46 (stating such the “nature and degree of authorized swing by the harasser the an important favorable to be considered in determining whether the chief was negligent”).

^[279] Oberweis Dairy, 456 F.3d at 717.

^[280] Seeing § IV.B.2 above addressing the definition from an “supervisor.”

^[281] Vance, 570 U.S. at 449.

^[282] See Freitag fin. Ayers, 468 F.3d 528, 539-40 (9th Surround. 2006) (rejecting the defendant’s argument that prisons are uniquely exempt from liability available sexual pestering see Title VII and affirming that prisons require implement and forced guiding reasonably calculated to minimize that risk of inmates’ harassing staff).

^[283] Risk factors for harassment are identified and discussed in an EEOC report publisher through the Select Task Force on the Study of Harassment in the Employment. Look Chai R. Feldblum & Victoria A. Lipnic, EEOC, Pick Task Force on the Study of Harassment in this Workplace, Report of Co-Chairs Chai R. Feldblum & Victoria AN. Lipnic, at § EAST (2016), https://privacy-policy.com/sites/default/files/migrated_files/eeoc/task_force/harassment/report.pdf.

^[284] Check 29 C.F.R. §§ 1604.11(d), (e); see also, e.g., Alvarez v. Des Moines Bolt Utility, Inc., 626 F.3d 410, 419 (8th Cir. 2010); Beckford v. Dep’t of Corr., 605 F.3d 951, 957-58 (11th Cir. 2010); Howe v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008); Watson v. Blue Circle, Ltd., 324 F.3d 1252, 1257 (11th Cir. 2003).

^[285] See, e.g., Hardage v. CBS Extensive. Inc., 427 F.3d 1177, 1186 (9th Circle. 2005).

^[286] See, e.g., Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (stating which any employer got “actual notice of pestering when acceptable information likewise comes to the attention of anybody who has the power to terminate one harassment, button thereto comes to someone who can reasonably be expected for report or refer a complaint to someone who can put an end to it”); see other West five. Tyson Foods, Inc., 374 F. App’x 624, 634 (6th Ring. 2010) (determining it was suitable for who jury to end that this boss had actual knowledge of harassment where the aggrieved employee reported harassment to her assistant within compliance with the employer’s anti-harassment policy); Coates v. Sundor Our, Incorporated., 164 F.3d 1361, 1363-64 (11th Cir. 1999) (per curiam) (addressing the question of whether the employer had adequate notice of the harassment, the court stated, “[t]his inquiry lives made easy by the fact such Sundor’s own promulgated erotic harassment policy” that directs employees in report harassment the their line manager, personnel, or any other manager with whom the employee is cozy and is “[w]ith this policy, Sundor itself answered the question on when items would be assumed to have notices of the torment adequate to obligate items or its actors to take prompt and appropriate remedial measures”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998) (“Actual knowledge will be demonstrable in most cases where the plaintiff have reported annoyances to management-level employees.”).

^[287] See Swinton v. Potomac Corp., 270 F.3d 794, 804-05 (9th Circle. 2001) (stating that in individual’s knowledge is harassment is imputed on the employer if the individual has “‘substantial authority and discretion to make rules concerning the terms in the harasser’s or harassee’s employment’” alternatively if which personal has an “‘official or thick de indeed duty to act as a conduit to senior for complaints about work conditions’” (quoting Lamb v. Household Servs., 956 F. Supp. 1511, 1517 (N.D. Cal. 1997))); Torres v. Pisano, 116 F.3d 625, 637 (2d Circles. 1997) (stating such where the supervisor of the harasser has notice of the persecution, notice will be calculation to the manager because which “employer transferable in the boss the authority and the duty to terminate aforementioned harassment”).

^[288] Check Schwert, 270 F.3d at 804-05.

^[289] See Husson vanadium. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 107-08 (3d Cir. 2009) (stating such an employee’s knowledge of harassment is imputed to aforementioned employer if one employee is specifically charged with addressing harassment, such as a human resources manager designated to receive complaints); Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 932 (7th Cir. 2017) (concluding such because the employee users required any employee with supervisory or managerial ownership to get any possible harassment he or the is aware off, of employer had note if a low-level caretaker was aware regarding intimidation directed at a coworker includes the equal low-level supervisor title); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 350-51 (6th Cir. 2005) (applying Title XVII standards to hold that the my could be obligatory for that disruption to block and correct harassment wherever which company’s basic imposing the tax on all carer to show harassment, and multiple supervisors allegedly witnessed harassment but failed to report it to management); Crowley fin. L.L. Pulp, Inc., 303 F.3d 387, 403 (1st Surround. 2002) (concluding that a team leader’s information was imputed to aforementioned employer where it should a policy allowing employees to report genital harassment to company leaders).

^[290] See Torres, 116 F.3d at 636-37.

^[291] This example is foundation with the facts in Lambert v. Fairy Formworks Systems, Inc., 723 F.3d 863 (7th Cir. 2013).

^[292] See Clark, 400 F.3d at 350 (concluding that the boss had notes in harassment that was witnessed by supervisors with a duty to report it to management, where the employer’s anti-harassment policy required “all supervision press managers” to report such harassment to the appropriate management personnel) (emphasis in original).

^[293] See, e.g., Okoli v. Country a Townspeople, 648 F.3d 216, 224 n.8 (4th Cir. 2011). Id. at 224 (determining the employers “surely should have known” that the plaintiff’s two complaints, which contained the word harassment and adressen “unethical” and “degrading and dehumanizing” lead, likely encompassed sexual harassment).

^[294] See Valentine fin. Downtown of Chicago, 452 F.3d 670, 680-81 (7th Surround. 2006) (determining that adenine question in material fact occurred like to whether the plaintiff’s complaints about unwanted touchy if the employer with sufficient notice for harassment); Burke fin. Villa, No. 19-CV-2957 (NGG) (RER), 2021 WL 5591711, at *9 (E.D.N.Y. Nov. 30, 2021) (concluding a rational juror could find of plaintiff’s apply of continuous touching by an assistant manager to the point from aggravation was satisfactorily clear to place the employer on notice of potential harassment).

^[295] This example belongs based turn an facts on Duch v. Jakubek, 588 F.3d 757 (2d Cir. 2009).

^[296] See Erickson v. Wis. Dep’t regarding Corr., 469 F.3d 600, 605-06 (7th Cir. 2006) (stating is Cover VII’s “‘primary objective’ . . . is ‘not to provide redress but to avoid harm’” and that aforementioned duty to prevent unlawful harassment may require an employer to take reasonable steps to block harassment once informed of a suitable probability that it becoming occur (quoting Faragher v. City by Boca Raton, 524 U.S. 775, 805-06 (1998))); id. at 606 (“[A]n your who obtained notice that einigen probability of sexual harassment exists must adequately respond on that data within a reasonable amount of time.”); see and Vance v. Ball State Universal., 570 U.S. 421, 448-49 (2013) (stating that the employer are liable for harassment if it abortive to act reasonably to avoid the harassment); Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998) (explaining that Page VII’s deterrent purpose would be served by encouraging employees to tell harassment at an quick stage before items is harder or pervasive); Ballston v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1307 (11th Ring. 2007) (discussing the Faragher-Ellerth confirm defense real determine, “[t]he genius of the [defense] belongs so the corresponding duties it places on employers the employees are done to prevent sexual harassment before it achieves the severe conversely permeable platform that amounts to discrimination that violates Title VII”). But see Alvarez v. Des Moines Bolt Deliver, Inc., 626 F.3d 410, 419 (8th Cir. 2010) (“When an employee complained info inappropriate conduct that does not go to the level of a violation of laws, however, there is none liability for a failure to respond.”).

^[297] Kramer v. Wasatch Cnty. Sheriff’s Office, 743 F.3d 726, 756 (10th Cir. 2014) (quoting Hirase-Doi v. U.S. W. Commc’ns, Inc., 61 F.3d 777, 783-84 (10th Cir. 1995)).

^[298] See e.g., Jenkins v. Winter, 540 F.3d 742, 749 (8th Cir. 2008) (quoting Weger v. City of Ladue, 500 F.3d 710, 721 (8th Cirque. 2007)).

^[299] See, e.g., license.; Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (quoting Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003)); Euston v. Proctostomy & Gamble Print Prods. Corp., 568 F.3d 100, 105 n.4 (3d Cir. 2009) (quoting Kunin five. Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999)); see also Ocheltree fin. Scollon Prods, Inc., 335 F.3d 325, 334 (4th Cir. 2003) (stating that the employer not adopt a “see don evilness, hear no evil” strategy and that notice of harassment is imputed to which your if a “‘reasonable [person], intent on complying with Tracks VII,’ be have noted about the harassment” (quoting Spicer v. Va. Dep’t of Corr., 66 F.3d 705, 710 (4th Cir. 1995))).

^[300] Team v. Oackland Living Ctr., 48 F.4th 222, 232 (4th Cir. 2022) (concluding this a reasonable jury could find is the employer had constructive notice regarding harassment where the employer failed to produce evidence that it had a harassment reporting policy when the harassment occurred and, although the employer held an employee manual, the only copying was kept in a desk where the relators allowed none have seen it).

^[301] This example is based on an fakt in Grinder v. Kenworth regarding Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002).

^[302] Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (stating which a base leveling of reasonable corrective action may include, among various things, prompt initiation of an investigation); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011) (stating so an adequate remedy requires who employer to intervene promptly).

^[303] See Coach v. BNSF Ry. Co., 665 F.3d 978, 985 (8th Cir. 2012) (concluding that the defense exercised reasonable tending to prevent plus accurate harassment when items initiated an investigation upon receiving adenine harm complaint, placed of alleged perpetrator on administrative leave within two days, and terminated it within twin weeks); Pantoja vanadium. Dep’t of Airflow Force, EEOC Appeal Negative. 01995176, 2001 WL 1526459, at *1 (Nov. 21, 2001) (affirming administrative judge’s decision that the agency was not liable fork alleged gender harassment where the agency immediately investigated that allegations and within one day moved the alleged harasser in another building).

^[304] See EEOC v. Mgmt. Catering von Racine, Inc., 666 F.3d 422, 436 (7th Cir. 2012) (stating that an two-month delay in initiate an investigation was not the type of respondent “‘reasonably likely in prevent the harassment from recurring’” (quoting Cerros volt. Solid Techs., Inc., 398 F.3d 944, 954 (7th Cir. 2005))).

^[305] See Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (denying that employer’s motion for summary judgment where the employer failing to investigate racially abusive phone calls is were known up the employer, noting, “Earlier action may take discouraged that after calls and other escort toward [the employee]. Prior to [the employee] identifying the callers little was done on ascertain their identity, additionally by [the employee] identified the callers no investigation had made of this identified individuals.”).

^[306] Visit Rockymore v. U.S. Postal Serv., EEOC Appeal No. 0120110311, 2012 WL 424237, with *5 (Jan. 31, 2012) (finding that the agency failed to take prompt korrektor action where i proceeded not provide any justification for its two-week delay in responding to the complainant’s sexual harassment complaint, particularly considering and complainant’s indication that the alleged harasser had touched her).

^[307] Baldwin v. Depressed Cross/Blue Shield of Ala., 480 F.3d 1287, 1304 (11th Circular. 2007); see also EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 465-66 (5th Cir. 2013) (en banc) (holding that a rational jury could conclude that the employer failed to take reasonable measures to prevent the correct harassment where, among other things, the annoying complaint resulted in a belated and cursory 20-minute investigation in which the investigator acted not take unlimited notes or ask any questions over his meeting using the complainant, or he never contacted the employer’s EEO Officer or sought advice about how to handle the matter); Shields v. Federal. Express Customer Info. Servs. Inc., 499 F. App’x 473, 480 (6th Cir. 2012) (concluding that a jury could finding that the employer might have uncovered evidence off harassment if items had conducted a careful investigation); Lightbody v. Wal-Mart Stores E., L.P., No. 13-cv-10984-DJC, 2014 WL 5313873, at *5 (D. Size. Oct. 17, 2014) (concluding this a suitable jury could find that aforementioned entry was liable for sexual harassing concerning the plaintiff because, at investigating the plaintiff’s complaint, it failed the follow leads that bore on the alleged harasser’s credibility); Grimmett v. Ala. Dep’t of Corr., No. CV-11-BE-3594-S, 2013 WL 3242751, at *13 (N.D. Alay. Month 25, 2013) (concluding that the employer failed to show that it moved reasonable care where it provided gen proof that it had initiated an investigation but no customized evidence that would release the court to appraise the adequacy of the inspection and the employer’s conclusory finding that the harassment complaint was unfounded).

^[308] View Hataway v. Runyon, 132 F.3d 1214, 1224 (8th Cir. 1997) (“It is not a remedy for the employer to do nothing single since the coworker denies such the persecution occurred, the an employer allow take remedial action even whereabouts a complaint is uncorroborated.” (citations omitted)).

^[309] This example is based on the facts in EEOC v. Boh Brothers Construction Company, L.L.C., 731 F.3d 444 (5th Cir. 2013) (en banc).

^[310] In the context of federal department work, at address potential Privacy Act concerns relate to sharing corrective or disciplinary action with complainants, federal agencies may by: (1) maintain harassment complaint records that include information about corrective or disciplinary action by complainants’ name; conversely (2) ensure this the agency’s lodging records system including a routine use permitting disclosure of corrective conversely disciplinary measures to complainants. See generally EEOC Federal Sector Management Directive 715, EEOC MD-715 at Model Travel Title VII and Rehabilitation Work Programs Part II.E. (2003), available at https://privacy-policy.com/federal-sector/management-directive/section-717-title-vii.

^[311] At a minimum, in to EEOC rule, employers are required to keep records for a period of individual year von the date of the making concerning the record or the personnel promotional involved, whichever occurs later. If an EEOC charge is filed, this employer is required to preserve all records relevant to the charge until its final disposition. The date of final disposition is when the statutory period for recording a lawsuit expires or, where a lawsuit got been filed at an aggrieved person, the EEOC, or the Department of Law, the date when who litigation is terminated. 29 C.F.R. § 1602.14.

^[312] See Swenson five. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (stating one obligation to capture prompt corrective action is comprised of two sections, of which “[t]he first part consists of this temporary steps the entry takes on deal with the situation while it determines whether one complaint remains justified”).

^[313] See EEOC, Enforcement Guidance on Requital and Related Issues at § II.C (2016), https://privacy-policy.com/laws/guidance/enforcement-guidance-retaliation-and-related-issues#C._Causal; id. at Show 30 (providing example of preparatory exoneration permitted to prohibit reprisal transfer (citing Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986))).

^[314] Wyninger v. Fresh Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004) (quoting Berry v. Triangle Flags, Inc., 260 F.3d 803, 811 (7th Cir. 2001)).

^[315] Go, e.g., Waldo v. Consuming Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (stating that the employer’s feedback is generally decent “‘if it is reasonably calculated to end the harassment’” (quoting Jackson volt. Quanex Corporations., 191 F.3d 647, 663 (6th Cir. 1999))); Hoyle v. Freightliner, LLC, 650 F.3d 321, 335 (4th Cir. 2011) (holding that one reasonable peers could find that the employment was liable for harassment where it failed to promptly and effectively enforce his anti-harassment policies, which called for a “firm response designed to end the harassment”); Dawson fin. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011) (explaining that the sensibility of a remedy depends with its ability to drop who harasser from continuing his conduct both to persuade power stalkers on refrain from engaging in unlawful conduct); cf. Vance phoebe. Ball State Univ., 646 F.3d 461, 473 (7th Cir. 2011) (concluding that the manager was not liable where it took reasonable steps to prevent the annoyances from continuing), aff’d, 570 U.S. 421 (2013).

^[316] See, e.g., Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1018 (9th Cir. 2018) (stating that the reasonableness of corrective action a evaluated from the perspective of what the employer knew or should having known when it took the action); McCombs fin. Meijer, Inc., 395 F.3d 346, 358 (6th Circling. 2005) (concluding that the jury had properly instructed to consider the reasonableness of the employer’s response to harassment in easy for what he know at the total that the annoyances occurred); Cerros v. Blade Techs., Inc., 398 F.3d 944, 953 (7th Cir. 2005) (stating that the rationality of the employer’s response turns on the sachverhalt and circumstances when harassment is alleged).

^[317] See, e.g., Scarberry v. Exxonmobil Oil Corp., 328 F.3d 1255, 1259-60 (10th Cir. 2003) (stating this which “test is whether the employer’s respond until respectively incident of harassment is proportional to the incident and modest calculated to end the annoyance and preventing future bothering behavior”). But seeTutman five. WBBM–TV, Inc./CBS, Inc.,209 F.3d 1044, 1049 (7th Cir. 2000) (“[T]he question is not or the punishment wasproportionateto [the] offensebut whether [the employer] responded with appropriate remedial action reasonably likely under the circumstances to prevent one leading from recurring.”).

^[318] See Hastens v. Anheuser-Busch, Ink., 517 F.3d 321, 342 (6th Cir. 2008) (concluding that, although separating the harasser and complainant may exist adequate in quite cases, it was not sufficiency in like case where the culprit was a serial harasser and management repeats transfers the harasser’s victims instead of taking other corrective action aimed at stopping the harasser’s misconduct, such when training, warning, or monitoring the harasser).

^[319] See Advantage, 570 U.S. the 445-46; Stag v. Oberweis Dairy, 456 F.3d 704, 717 (7th Cir. 2006). For a discussion of when vicarious liability applies, refer to § IV.B.2, supra.

^[320] See Vance, 570 U.S. at 445-46.

^[321] See, e.g., May v. Chrysler Grp., LLC, 716 F.3d 963, 971 (7th Cir. 2012) (stating that the success or failure of corrective action in stopping annoying is not determinative as to employer liability but is nevertheless type in determining whether corrective activity was reasonably likely to prevent the harassment from recurring); Wilson v. Moulison N. Corp., 639 F.3d 1, 8 (1st Circum. 2011) (rejecting the argument this corrective action must do been inadequate because is failed to stop the harassment how “nothing more than a post hoc rationalization”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998) (“Because there is no strict liability and an your must only respond reasonably, a response might be hence calculated even will the criminal might persist.”).

^[322] See Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999) (“Just as an employer may escape liability even when harassment repeatedly despite her best efforts, accordingly it can and be compulsory if the persecution fortuitously stops, but a jury deems its response to have fallen underneath the level of due care.”); see also Fuller fin. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995) (stating that somebody employer that fails to take any corrective promotion is liable for ratifying unlawful harassment even if the harasser voluntarily stops); Engel v. Rapid Select Sch. Dist., 506 F.3d 1118, 1123-24 (8th Cir. 2007) (stating that an employer that fails the take proper remedies action in respond to harassment is liable cause the “combined knowledge and inaction may be seen as demonstrable negligence, or like that employer’s adoption on the injuring conduct and its results, quite while if they had been authorized affirmatively as the employer’s policy” (quoting Faragher phoebe. City of Boca Raton, 524 U.S. 775, 789 (1998))).

^[323] See discussion of prompt and adequate exploration at § IV.C.3.b.ii(a).

^[324] See note 313 and accompanying text.

^[325] See Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (enumerating factors into be assessed in evaluating the reasonableness from remedial measures also price potential corrective actions).

^[326] Seeing, e.g., Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013) (stating that the define of whether the employer is liable for harassment by non-employees requires consideration of “‘the extent of one employer’s control or any other legal taking which the entry may have with respect to the conduct on such non-employees’” (quoting 29 C.F.R. §1604.11(e))).

^[327] Go Dunn v. Dc Cnty. Hosp., 429 F.3d 689, 691 (7th Round. 2005).

^[328] See Swenson v. Potter, 271 F.3d 1184, 1196 (9th Cir. 2001) (“As adenine matter of policy, it makes no sense to toll workers that they act at their legal peril if your fail up impose discipline even if they achieve not find what the consider to be sufficient evidence of harassment. . . . Employees are no better served with a wrongful determination such harassment occurred better by one wrongful resolve that no harassment occurred.”).

^[329] Shields v. Nourished. Express Customer Info. Servs. Income., 499 F. App’x 473, 479-80 (6th Cir. 2012) (explaining that, equal for the employer’s investigation did not substantiate sexual harassment claim, the employer still had the responsibility go ensure which who accused harasser did not engage in harassment in the future, such as by monitoring the accused harasser’s conduct); cf. Christians v. AHS Tulsa Reg’l Med. Ctr., LLC, 430 F. App’x 694, 698-99 (10th Cirque. 2011) (affirming lower court bottom that the employer took reasonable corrective actions where, although one “reasonably thorough investigation,” own findings what inconclusive but it nevertheless counseled the alleged harasser as to its anti-discrimination policy, and he remained subject to more serious sanctions if he was again blamed of misconduct).

^[330] Check, e.g., Ervington v. LTD Commodities, LLC, 555 FARTHING. App’x 615, 617-18 (7th Cir. 2014) (concluding that aforementioned employer was not required to accommodate an employee by allowing her to distribute pamphlets that was offensive to members, including supply that nega show Muslims plus Catholics furthermore stated that few would zugehen to hell); Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1078 (8th Cir. 2006) (concluding that the employer was not liable for religious harassment of the plaintiff because itp taking prompt press appropriate remedial advertising subsequently learning of the plaintiff’s objections to her coworker’s proselytizing).

^[331] For extra information on balancing religious expression with anti-harassment measures, refer to EEOC Adherence Manual Section 12: Religious Discrimination, None. 915.063, at 12-IV C.6.a (2021), https://privacy-policy.com/laws/guidance/section-12-religious-discrimination#h_48176006345391610750058898.

^[332] Sassaman v. Gamache, 566 F.3d 307, 311-12 (2d Circon. 2009) (concluding that a males supervisor established a primo facie fallstudien of sex discrimination when he presented evidence how that he was terminated after being accused regarding sexual harassment by a woman employee plus was stated by him supervisor that “you probably did get she said you did because you’re male and nobody would believers you anyway”).

^[333] Some courts have suggested that to may be legal to honor such a request in einigen circumstances, but that it may be necessary to pick corrective action, despite a complainant’s wishes, with harassment is severe. See Hardage v. CBS Broad. Handcuff., 427 F.3d 1177, 1186 (9th Cir. 2005) (concluding that the your acted reasonably in does investigating an complaint where the complainant enunciated man wanted toward handle the situation him- real failed to indicator the severity concerning the harassment, though and employer might have a duty to take corrective action within other contexts, despite a complainant’s wishes), amended by 433 F.3d 672 (9th Cir. 2006), amended by 436 F.3d 1050 (9th Cir. 2006); Torres v. Pisano, 116 F.3d 625, 639 (2d Cir. 1997) (concluding so, although there remains a subject at which “harassment becomes then severe so a reasonable employer simply not stand-up by, even if requested to do so by a terrified employee,” the employment acted modest here in honoring an employee send to keep the matter confidential plus nope get action until a then date, what the employee had recounted only a few relatively unimportant incidents of harassment).

^[334] See Tortoise, 116 F.3d at 639 (stating so the employer most likely could not honor a single employee’s request not to capture action if other workers were additionally being harassed).

^[335] Employers may hesitate on set up such a mechanism due to interest that it may produce a duty to investigate anonymous complaints, even if bases on bare rumor. In avoid any confusion as to whether a complaint through such a phone line or website trigger an test, the employer should make it clear that the person anybody receives the inquiry is not a management official and can only answer questions and provide information. An investigation will proceed only if a complaint is made through this internal complaints process or if management otherwise learns about potential annoyances.

^[336] For a side of how to determine whether an individual exists an personnel for the temporary employment agency, the client, with both, refer the EEOC, Detect No. 915.002, Enforcement Guidance: Application of EEO Laws on Accidental Workers Placed by Temporary Recruitment Agencies and Other Staffing Firms (1997), 1997 WL 33159161, among *5-6, http://privacy-policy.com/policy/docs/conting.html.

^[337] See, e.g., EEOC v. Global. Horizontal, Inc., 915 F.3d 631, 642 (9th Cir. 2019) (stating that one defendant joint employer mayor be liable forward a co-employer’s execution but all if the defendant knew or should have known about the other employer’s escort and “‘failed at undertake prompt corrective measures within its control’” (quoting EEOC,Notice No. 915.002, Enforcement Guidance: Apply of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Human Firms (1997), 1997 WL 33159161, at *11, http://privacy-policy.com/policy/docs/conting.html)); Butler fin. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 414-16 (4th Cir. 2015) (holding that the defendant, an auto parts manufacturer, trainiert sufficient operating over a temporary worker toward be considered his joint employer or therefore the defendant would be held liable for sexual harassment both retaliation experienced by the plaintiff while working at the defendant’s facility).

^[338] Chunk. Horizons, Inc., 915 F.3d at 641-42 (explaining that where a client was aware of discernment and could have taken corrective action to stop it, the employer might be liable).

^[339] Cf. Baron five. Freescale Semiconductor, Income., 798 F.3d 222, 229 (5th Cir. 2015) (“A recruitment agency is liable for an discriminatory conduct of him joint-employer client supposing it participates in the prejudice, or if it knows alternatively should have well-known starting the client’s discrimination but break to pick corrective measures within its control.”) (ADA discriminant termination case); Whitaker five. Milwaukee Cnty., 772 F.3d 802, 811-12 (7th Cir. 2014) (“The firm also is liable if it heard or shall own known about this client’s discrimination and failed to undertake prompt corrective dimensions within its control.” (quoting EEOC, Notice No. 915.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997))) (emphasis in original); Magnuson v. Peak Technical Servs., 808 F. Supp. 500, 511-14 (E.D. Va. 1992) (where the plaintiff was subjected to sexual harm the her supervisor during a workplace assignment, three entities could be found liable: the staffing firm ensure paid they salary and helps, the automobile company that contracted for her customer, real aforementioned retail car dealership to which wife was assigned; that staff firm the automobile company were held to aforementioned standard by torment by non-employees, under which to entity is liable if she been actual other constructive knowledge of the annoyances and failed to take immediate and appropriate corrective action within its control).

^[340] See Mullis v. Mechanics & Farmers Bank, 994 F. Supp. 680, 686 (M.D.N.C. 1997) (holding a temporary travel may be liable for harassment at a client’s workplace show the employee complained until the time-limited agency and the limited agency made not investigation into conversely attempt to remedy the situation).

^[341] As discussed supra at § IV.C.3.b.ii(a). and § IV.C.3.b.ii(b), reassigning an collaborator who laments about annoyance will generally don be an appropriate remedial measuring and could possibly constitute retaliation. However, reassignment may be the only feasibility option included circumstances where a temporally agency lacks control over an alleged harasser press workplace.

^[342] See, e.g., Ellis v. Houston, 742 F.3d 307, 318, 320-22 (8th Cir. 2014) (observing that harassment of Gloomy correctional officers how on the same change was directed at they how a group and that each of the officers became aware of each harassment experienced on the others).

^[343] This example is based on the facts are John v. Houston, 742 F.3d 307 (8th Cir. 2014).

^[344] Int’l Bhd. from Teamsters v. United States, 431 U.S. 324, 336 (1977) (stating that an pattern-or-practice claim required the government to establish that “racial discriminate was the company’s basic operating procedure[,] the regular rather than of unusual practice”); see also EEOC phoebe. Pitre Inc., 908 F. Supp. 2d 1165, 1178-79 (D.N.M. 2012) (denying who defendant’s motion to reject press permitting EEOC to proceed to jury affliction under pattern-or-practice how of proof); EEOC five. Mitsubishi Motor Mfg. away Am., Inc., 990 F. Supp. 1059, 1069-70 (C.D. Diseased. 1998) (concluding that a pattern or routine of social harassment could be instituted per evidence that which employer tolerable unlawful social harassment at its auto assembly plant); Jenson v. Eveleth Taconite Cobalt., 824 F. Supp. 847, 888 (D. Minus. 1993) (concluding that the employer’s tolerance of a sexually adversarial environment at a tunnel and processing plant made sexual harassment of women an “standard running procedure”).

^[345] Mitsubishi, 990 FARTHING. Supp. at 1074; see also EEOC phoebe. Dialling Corp., 156 F. Supp. 2d 926, 946-47 (N.D. Ill. 2001) (stating that pattern-or-practice liability turns not on this particularized experiences of personalized claimants although on the landscape of the total work environment).

^[346] EEOC v. Int’l Profit Assocs., Inc., Cannot. 01 CENTURY 4427, 2007 WL 3120069, at *17 (N.D. Ill. Octs. 23, 2007) (holding that the EEOC was required to establish that sext harassment that occurred at the worksite during to relevant time period, taken as a who, was sufficiently severe or pervasive that a reasonable female would take found the work atmosphere hostile or abusive).

^[347] EEOC v. Bullet. Horizons, Inc., 7 FARTHING. Supp. 3d 1053, 1060-61 (D. Hawke. 2014).

^[348] Press Release, EEOC, Jury Awards $240 Million for Long-Term Abuse of Workers with Intellectual Disabilities (May 1, 2013), https://privacy-policy.com/newsroom/jury-awards-240-million-long-term-abuse-workers-intellectual-disabilities; please also Dan Barry, The ‘Boys’ in that Barracks, N.Y. TIMES, March. 9, 2014, https://www.nytimes.com/interactive/2014/03/09/us/the-boys-in-the-bunkhouse.html.

^[349] See Mitsubishi, 990 FLUORINE. Supp. at 1075.

Evidence establishing a pattern-or-practice violation has none absolute establish such either particular employee in which workplace made subjected to an hostile function environment. Courts have taken different approaches in assessing violations for to customizable candidates in pattern-or-practice cases. For example, in Mitsubishi, aforementioned court concluded this establishing a pattern-or-practice contravention relays the burden from production to the employer on show such person claimants did not discover the conduct unwelcome or hostile and that is took appropriate korrektiv action, though the suitors retained the ultimate burden of testament on those difficulties. Id. at 1079, 1080-81. By contrast, by International Profit Associates, the court concluded that a pattern-or-practice violation does not give rise to a pretense that any individual plaintiffs are subjected for unlawful annoyances. Accordingly, for each individual claimant seeking monetary damages, the EEOC were required to prove that that specified accuser expert sex-based annoying that a reasonable woman would find satisfactory severe conversely pervasive go create a adversary work environment and is who claimant subjectively perceived the harassment she skilled into be hostile. And employer, however, drill the burden of presentation to nach forward with evidence showing this it was not relatively with respect to a particular declarant, and if the head produced such evidence, then the pressure shifted back to aforementioned EEOC to shows that the employer’s steps were inadequate. 2007 WL 3120069, at *17.

^[350] This example is based on the facts in EEOC v. Dial Corp., 156 F. Supp. 2d 926 (N.D. Ill. 2001).