Table Of Content
Sex-based harassment under Title VII includes harassment based on pregnancy,[30] childbirth, or related medical conditions.31 This can include issues such as lactation;[32] using or not using contraception;[33] or deciding to have, or not to have, an abortion.[34] Harassment based on these issues generally would be covered if it is linked to a targeted individual’s sex including pregnancy, childbirth, or related medical conditions. 271 See EEOC v. V & J Foods, Inc., 507 F.3d 575, 578 (7th Cir. 2007) (explaining that, although an employer need not tailor its complaint procedure to the competence of each employee, “the known vulnerability of a protected class has legal significance”). In V & J Foods, the victims of harassment were teenage girls working part-time, and often as their first job, in a small retail outlet.
B. Pattern or Practice of Harassment
App’x 49, 51 (2d Cir. 2017) (holding that a reasonable jury could find that the plaintiff was subjected to unlawful harassment based on race, national origin, and religion, based in part on a senior supervisor’s comments that she should remove her hijab, which he called a “rag,” and his comment on September 11, 2013, that the plaintiff and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything”). In some circumstances, an employee may report harassment but ask that the employer keep the matter confidential and take no action. The duty to exercise reasonable care to correct harassment for which an employer had notice is discussed in detail at section IV.C.3.b, below.
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Any other interpretation would be inconsistent with the statutory text and with Bostock, and would introduce an inconsistent and textually unsupported asymmetry under which an employee could not be terminated because of their sexual orientation or gender identity but could be harassed or otherwise discriminated against in the terms and conditions of employment based on those same characteristics. 175 In Burlington Industries, Inc. v. Ellerth, the Court explained that unfulfilled threats are actionable if they create a hostile work environment. A sufficiently serious threat, even if unfulfilled, could meet the necessary level of severity. 77 E.g., Ahmed v. Astoria Bank, 690 F.
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260 See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1303 (11th Cir. 2007) (stating that the affirmative defense is not available where “the discrimination the employee has suffered included a tangible employment action”). 171 See, e.g., Turner v. Saloon, Ltd., 595 F.3d 679, 686 (7th Cir. 2010) (concluding that the plaintiff’s claim that his female supervisor grabbed his penis through his pockets was probably severe enough on its own to create a genuine issue of material fact as to the plaintiff’s sexual harassment claim). 118 See, e.g., 42 U.S.C. 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”). 51 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.”). Section 501 of the Rehabilitation Act of 1973 prohibits employment discrimination against applicants or employees of the federal government who are individuals with disabilities. The Rehabilitation Act Amendments of 1992 made clear that the standards applied under Title I of the ADA also apply to Section 501 employment discrimination claims.
Interplay Between Statutory Harassment Prohibitions and Other Rights
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If an employee has been subjected both to harassment based on race, sex, or another protected characteristic and to retaliation, then the legal standard or standards that apply to particular harassing conduct will depend on whether the conduct is being challenged as part of a harassment claim, a retaliation claim, or both. 350 See, e.g., Campbell v. Haw. 272 EEOC v. Spud Seller, Inc., 899 F. 2d 1081, 1095 (D. Colo. 2012) (determining a trial was required on the issue of whether the employer, which employed some individuals who spoke only Spanish, could satisfy the Faragher-Ellerth affirmative defense where the employer’s handbook contained an anti-harassment policy in English, but there was no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish-speaking employees). 71 See, e.g., Barrett, 556 F.3d at 513 (concluding that the district court erred in rejecting two White employees’ claim of associational discrimination on the grounds that they failed to show the “requisite degree of association” with Black coworkers and explaining that the degree of association is irrelevant in assessing whether a plaintiff has a valid claim of associational discrimination (citing Drake v. 3M, 134 F.3d 878, 884 (7th Cir. 1998)); cf.
For example, it would violate Title VII if an employer assumed that a male employee accused of sexual harassment by a female coworker had engaged in the alleged conduct based on stereotypes about the “propensity of men to harass sexually their female colleagues”367 and therefore fired him. 4 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 Disabilities Act (ADA)); 42 U.S.C. § 2000ff-6(a) (Genetic Information Nondiscrimination Act (GINA)). This guidance addresses harassment claims under provisions of the federal EEO laws that prohibit discrimination by employers, including section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1) (private sector and state and local government) and section 717 of Title VII, 42 U.S.C. § 2000e-16(a) (federal agencies).
275 See Wilson, 164 F.3d at 541 (noting deficiencies with the employer’s policy, including a supervisor-bypass option that “is located in a separate facility and is not accessible during the evening or weekend hours when many employees and students are on the various campuses”); Lamarr–Arruz v. CVS Pharm., Inc., 271 F. 3d 646, 661 (S.D.N.Y. 2017) (the employee’s testimony that complaints to the ethics hotline were ignored raises questions regarding the reasonableness of the employer’s purported available corrective measures); Spud Seller, 899 F. 2d at 1095 (questioning whether the employer’s anti-harassment policy was sufficient where employees who spoke only Spanish could not bring complaints directly to the individuals identified in the policy because the points of contact did not speak Spanish); Wilborn v. S.
Kengerski v. Harper, 6 F.4th 531, , 539 (3d Cir. 2021) (noting that associational discrimination is not limited to close or substantial relationships and ruling that the complainant could pursue his retaliation claim for making a complaint regarding harassment based on his association with his biracial grand-niece). Once an employer has notice of potentially harassing conduct, it is responsible for taking reasonable corrective action to prevent the conduct from continuing. This includes conducting a prompt and adequate investigation and taking appropriate action based on the findings of that investigation.
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257 As discussed in section III.C.1, supra, a discriminatory employment practice that occurred within the charge-filing period may be independently actionable regardless of whether it is also part of a hostile work environment claim. 231 Sharp v. City of Hous., 164 F.3d 923, 929 (5th Cir. 1999) (“The concept of negligence thus imposes a minimum standard for employer liability—direct liability—under title VII, a standard that is supplemented by the agency-based standards for vicarious liability as articulated in Faragher and [Ellerth].” (internal quotation marks and citation omitted)); Wilson v. Tulsa Junior Coll., 164 F.3d 534, 540 n.4 (10th Cir. 1998) (“The Supreme Court recognized in [Ellerth] and Faragher the continuing validity of negligence as a separate basis for employer liability.”). 220 See Lapka v. Chertoff, 517 F.3d 974, 979, 983 (7th Cir. 2008) (concluding that Title VII covered sexual harassment that occurred while attending employer-mandated training at an out-of-state training center). 203 See, e.g., Christian v. Umpqua Bank, 984 F.3d 801, , 811 (9th Cir. 2020) (concluding that the evidence created a triable issue as to whether a customer’s harassment of the complainant was sufficiently severe or pervasive where the customer persisted in asking the complainant on dates, sending her notes and letters, and repeatedly “pester[ing] her” for months after the complainant asked him to stop).
As discussed below in section II.B, harassing conduct need not explicitly refer to a protected characteristic to be based on that characteristic where there is other evidence establishing causation. 352 See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 342 (6th Cir. 2008) (concluding that, although separating the harasser and complainant may be adequate in some cases, it was not sufficient in this case where the wrongdoer was a serial harasser and management repeatedly transferred the harasser’s victims instead of taking other corrective action aimed at stopping the harasser’s misconduct, such as training, warning, or monitoring the harasser). 335 Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (stating that a base level of reasonable corrective action may include, among other things, prompt initiation of an investigation); Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011) (stating that an adequate remedy requires the employer to intervene promptly). 320 See, e.g., Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 931 (7th Cir. 2017) (holding that the employer could be liable if it knew or should have known of the non-supervisor’s harassing conduct yet failed to act). 282 See Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006) (“An employer may demonstrate the exercise of reasonable care, required by the first element, by showing the existence of an antiharassment policy during the period of the plaintiff's employment, although that fact alone is not always dispositive.”).
Ultimately, however, because of the fact-specific nature of these cases, the guidance necessarily cannot be exhaustive, and the guidance is not intended to illustrate every possible factual situation that might involve unlawful harassment. Rather, the guidance presents the overarching legal standards that are applied to particular circumstances in evaluating whether the EEO laws have been violated and the employer is liable. The examples are intended to be merely a small representative sample to illustrate how the legal principles apply in certain circumstances. If the supervisor took a tangible employment action as part of the hostile work environment, then the employer is automatically liable for the hostile work environment and does not have a defense. Following Harris, a number of courts have addressed unwelcomeness as part of determining subjective hostility, because conduct that is subjectively hostile will also, necessarily, be unwelcome.137 Other courts continue to analyze “unwelcomeness” as a separate element in a plaintiff’s prima facie harassment case, in addition to the “subjectively and objectively hostile work environment” analysis.138 In the Commission’s view, this latter approach incorporates an unnecessary step in a court’s legal analysis of workplace harassment.
Robinson Worldwide, Inc., 567 F.3d 263, 272 n.2 (6th Cir. 2009) (concluding that the plaintiff established that she experienced sex-based harassment, even though some women participated in the conduct); Jenson v. Eveleth Taconite Co., 824 F. 847, 886 (D. Minn. 1993) (concluding that expert testimony and testimony of female mine workers established that the work environment affected the psychological well-being of a reasonable woman working there, and this conclusion was not affected by the fact that some women did not find the work environment objectionable); Robinson v. Jacksonville Shipyards, Inc., 760 F. 1486, 1525 (M.D. Fla. 1991) (stating that the fact that some women did not find the conduct offensive did not mean that the conduct was not objectively hostile). Conduct that can affect the terms and conditions of employment, even if it does not occur in a work-related context, includes electronic communications using private phones, computers, or social media accounts, if it impacts the workplace.224 For example, if an Arab American employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see the comment and discuss it at work, then the social media posting can contribute to a hostile work environment based on national origin. However, postings on a social media account generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees. Title VII prohibits employment discrimination, including unlawful harassment based on sex.
309 As noted earlier in section IV.C.2.b.i, the principles discussed in this section (section IV.C.3) also apply in determining whether the employer has satisfied the first prong of the Faragher-Ellerth affirmative defense. 305 See, e.g., Weger v. City of Ladue, 500 F.3d 710, 725 (8th Cir. 2007) (explaining that imposing vicarious liability on an employer is a compromise requiring more than “ordinary fear or embarrassment” to justify delay in complaining (quoting Reed, 333 F.3d at 35)). 205 See Garcimonde-Fisher v. Area203 Mktg., LLC, 105 F.
Once the status of the harasser is determined, the appropriate standard can be applied to assess employer liability for a hostile work environment. The determination of whether hostile-work-environment harassment is based on a protected characteristic will depend on the totality of the circumstances.87 Although causation must be evaluated based on the specific facts in a case, the principles discussed below will generally apply in determining causation. Not all principles will necessarily apply in every case. 370 See Torres, 116 F.3d at 639 (stating that the employer most likely could not honor a single employee’s request not to take action if other workers were also being harassed). 359 See Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (enumerating factors to be assessed in evaluating the reasonableness of remedial measures and listing potential corrective actions).
Corrective action that leaves the complainant worse off could constitute unlawful retaliation.347 The employer should take measures to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliation. An investigation is adequate if it is sufficiently thorough to “arrive at a reasonably fair estimate of truth.”[340] The investigation need not entail a trial-type investigation, but it should be conducted by an impartial party and seek information about the conduct from all parties involved. The alleged harasser therefore should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation.
