Kerry Ellison v. Nicholas F. Brady, Secretary of the Treasury

KOZINSKI, Before BEEZER and alleges Ellison that after the June lunch Judges, STEPHENS,** Circuit Gray pester started to her with unneces- Judge. District sary questions hang around desk. 9, 1986, Gray On October asked Ellison out BEEZER, Judge: Circuit declined, for a drink after work. She but Kerry appeals Ellison suggested the district court’s she they have lunch the granting order summary judgment following to the week. She did not want to Secretary Treasury him, on her sexual lunch alone with stay and she tried to brought harassment action away under Title VII from the during office lunch time. Rights week, of the Civil Act of day during U.S.C. One following Gray ** California, Stephens, sitting by designation. The Honorable Albert Lee Senior trict of Judge United States District for the Central Dis- Elli- Miller. immediately telephoned three-piece She in a uncharacteristically dressed fright- that she was supervisor lunch. told her out son Ellison asked suit and requested upset. She really accept. ened did not Again, she Gray because her or transfer either Miller Ellison Gray handed On October working in comfortable would not be she message telephone aon he wrote a note asked him. Miller office with the same read: slip which letter the card and copy of to send a Ellison totally I’m night and you last I cried over to San Mateo. in such I have never been today. drained (sic). you for Thank oil term constant supervisor, her telephoned then Miller to not stand I could talking me. with problem. Benton, the discussed and Joe day. another hatred for your feel counseling ses- had a day same she That Gray wrote realized that Ellison When that he informed him Gray. She sion with frightened and note, shocked became she Dur- representation. to union was entitled her into Gray followed the room. left and Gray to leave told meeting, she ing this talk to she that hallway and demanded Ellison alone. building. him, she left but apprised Miller request, At Benton’s to Bonnie the note later showed Ellison of the situation. department relations labor and Ellison Miller, supervised both who over many times Gray reminded also She “this is sexual harass- said Gray. Miller must not con- that he few weeks the next any- not to do Miller asked ment.” Ellison subsequent- Gray any way. in tact Ellison try to to handle wanted it. She thing about office Francisco to the San ly transferred co-worker a male Ellison asked it herself. returned Ellison on November not that she was tell him Gray, to to to talk did in November Louis late from St. to leave alone. in him and interested Miller. with further matter not discuss Thursday, Gray called day, The next sick. Francisco, Gray in San three weeks After a return requesting grievances filed union Friday, on work on did not Ellison The IRS Mateo office. to the San four started following Monday, she Gray’s fa- grievances Louis, union settled Missouri. training St. weeks of back vor, him to transfer single- agreeing to allow typed, and a her a card Gray mailed that he provided describes Mateo office letter. She to the San three-page spaced, times, hundred in San Francisco “twenty more spend four months this letter Gray On note. prior bother Ellison. than the promise times ‘weirder” 28, 1987, first learned wrote, part: January Ellison ex- from Miller in a letter Gray’s request knowing are you worth I know that return the San Gray Leaving aside the that would plaining sex.... or without that I weeks. letter indicated recent office. The and disasters Mateo hassles Ellison’s over these to resolve much decided enjoyed you so management Expe- Watching you. separation, months. with a six-month past problem few away. Ad- far if the from 0 so action riencing you take additional that it Don’t elan.... style and miring your recurred. problem people who two it odd that you think letter, was Ellison receiving the After alone, together, even talked have never complaint a formal She filed “frantic.” I sparks ... intense striking off such are January on alleging near in the letter another will [write] per- She also obtained the IRS. 1987 with future.1 tempo- Francisco San to transfer to mission “I reaction, stated: Ellison Explaining her Gray rarily returned. when he thought I crazy. thought he was just wrote counseling. joint He Gray sought do he what would I know didn’t was nuts. sought to which still another letter Ellison frightened." I was next. you want If you I will.... say me leave alone Gray "I long did letter middle of the 1. In the entirely, do that.” forget you I can not you want me to if you obligated to so am much maintain the idea that he and Ellison had benefits on sexual favors. In “hostile envi- type relationship.2 some cases, employees ronment” work offen- Larson, sive or abusive environments.4 A. employee investigating The IRS the alle- Employment Discrimination 41.61 at gation agreed supervisor with Ellison’s case, Meritor, 8-151 This like in- conduct constituted sexual volves a hostile environment claim. decision, however, harassment. In its final Treasury Department rejected Ellison’s Supreme Court in Meritor held that complaint because it believed the com- Mechelle Vinson's conditions con- plaint pattern practice did not describe stituted a hostile environment in violation of sexual harassment covered the EEOC prohibition of Title VII’s of sex discrimina- regulations. appeal, After an the EEOC tion. supervisor Vinson’s repeated made Treasury affirmed the Department’s deci- favors, demands for sexual usually at ground. sion on a different It concluded work, during both and after business agency that adequate took action to hours. initially Vinson employ- refused her prevent repetition conduct. advances, er’s sexual eventually but acced- complaint September Ellison filed a in ed because she losing job. feared They 1987 federal district court. The court had forty intercourse over times. She addi- granted government’s motion for sum- tionally testified that he “fondled her in mary judgment ground on the that Ellison employees, front of other followed her into prima had failed to state a facie case of the women’s restroom when she went there sexual harassment due to a hostile alone, exposed her, himself to and even appeals. environment. Ellison forcibly raped her on several occasions.” Meritor, 60, 477 U.S. at 106 at S.Ct. 2402. II The Court had difficulty finding no this Congress added the word “sex” to Title 67, environment hostile. Id. at 106 at S.Ct. Rights VII of the Act Civil of 19643 at the 2405-06. last minute on the floor of the House of Representatives. Cong.Rec. 2,577-2,- 110 Meritor, Since we have not often (1964). Virtually legislative history 584 no reached the merits of a hostile environment provides guidance interpreting to courts sexual harassment claim. In Jordan v. prohibition of sex discrimination. In Clark, 1368, (9th Cir.1988), 847 F.2d 1373 Vinson, Savings Meritor Bank v. 477 U.S. nom., Hodel, cert. denied sub Jordan v. 57, 2399, (1986), 106 S.Ct. 91 L.Ed.2d 49 488 U.S. 109 S.Ct. 102 L.Ed.2d Supreme Court held that sexual harass- (1989), explained that a hostile envi ment constitutes sex discrimination viola- ronment exists when an employee can show tion of Title VII. (1) subjected that he or she was to sexual advances, favors, recognized requests

Courts have different forms for sexual or of sexual “quid pro quo” physical harassment. In other verbal or conduct of a sexual cases, employers nature,5 (2) employment condition that this conduct unwel- was See, appeal language It e.g., is unclear from the record on wheth- or is not sexual in nature. Co., er Ellison received the third letter. Hall v. Gus Construction (8th Cir.1988). examples Our are illustra- employ- 3. That statute makes it “an unlawful tive and not exclusive because we realize that practice employer ment for an ... to discrimi- rapidly expanding is a area against any respect nate compensation, individual with to his of the law. terms, conditions, privileges employment, because of such individual’s 5.Here, government argues that con- race, color, sex, religion, origin." or national three-page duct was not of a sexual nature. The 2000e-2(a)(l) (1982). U.S.C. § letter, however, makes several references to sex and constitutes verbal conduct of a sexual na- 4. Some courts have entertained causes of action ture. We need not and do not decide whether a square- for sexual fall harassment which do not party sexually ly can state a cause of quid pro quo action for within the cases or the hostile discriminatory working example, under Ti- environment cases. environment For some courts question have gender tle VII when the conduct is not classified-harassment based on the victim’s City Philadelphia, as sexual harassment where the conduct sexual. See Andrews v. trivial.” genuinely “isolated (3) duct was come, the conduct was suffi- disagree. We alter the con- pervasive to ciently severe or and cre- of the victim’s ditions part the third begin analysis of our We working environment. ate an abusive we set forth Jordan the framework The Su- look at Meritor. a closer Jordan, for clear we reviewed explained in Meritor preme Court court’s determination the district error is- guidelines look to may properly courts subjected particu employee was not Employment Opportuni- Equal sued We Id. at 1375. unwelcome advances. lar (EEOC) guidance when ty Commission review de novo that we will explained claims of examining environment hostile that con final conclusion district court’s at harassment. 477 U.S. enough or is not severe duct guidelines at 2404-05. The S.Ct. environ enough to constitute an abusive harassment as environment describe hostile district n. 7. We affirmed the Id. at ment. effect purpose has the “conduct [which] we did because judgment Jordan court’s interfering with an individ- unreasonably findings clearly errone factual not find its in- creating an performance or ual’s work Meese, Id. See also Vasconcelos ous. hostile, working en- timidating, or offensive (9th Cir.1990) (affirming 1604.11(a)(3). 29 C.P.R. vironment.” § working court’s decision district EEOC, in accord with a substantial The sexually hostile be not environment was decisions, has concluded body judicial findings factual the district court’s cause employees right VII affords that “Title erroneous). clearly were from dis- in environment free work an to examine a opportunity another We had ridicule, intimidation, in- criminatory sexu working claim of environment hostile 65, at 106 S.Ct. at 2405. 477 U.S. sult.” Ho E.E. C. v. Hacienda al harassment O. however, cautioned, Supreme Court The Cir.1989). (9th In that tel, 881 F.2d 1504 “term, all harassment affects that not a hostile work the district court found case condition, employment privilege” or male where the hotel’s ing environment For ex- meaning of Title VII. within frequently made sexu engineering chief of an ethnic or “mere utterance of ample, the to the and sexual advances al comments engenders offensive epithet which racial supervisor maids, a female and where not, itself, by employee” is feelings in an “dog[sj” and employees her female called 67, 106 Title VII. Id. at under actionable Upon a de novo “whore[sj.” Id. at 1508. Title a claim under 2405. To state S.Ct. at by the district the facts found review of suffi- VII, harassment “must be sexual suf court, agreed that the conduct was we the con- pervasive to alter ciently severe alter the pervasive ficiently severe employment and cre- the victim’s ditions of create a hos employment and conditions working Id. environment.” ate an abusive working environment. tile limit drew its Supreme The Court C., 454 language Rogers from v. E.E. O. ing Ill Cir.1971), denied, (5th 406 cert. F.2d 234 if 957, 2058, to determine 343 parties The ask us 32 L.Ed.2d 92 S.Ct. U.S. Ellison, conduct, recognize was suffi- a hostile alleged (1972), case to the first the con- Title VII. to alter claim under ciently severe racial environment phrasing and create limits hostile environ employment Rogers ditions of Ellison’s The alters The dis- to cases where conduct working environment. ment claims an abusive employment and creates court, Ninth case little Circuit the conditions trict The working that Elli- environment. guidance, held an abusive to look to for law drawing Rogers upon guidelines, case of prima facie did not state son decisions, sexual indicate that working and other due to a hostile con- Title VII where violates Gray’s con- harassment It environment. believed 1010, (8th Cir.1988) (conduct need (3d Cir.1990) (conduct F.2d need not sexual). Co., sexual); not be Hall v. Gus Construction hostile, intimidating, government duct creates or of- asks us to apply the reasoning fensive environment or where it unreason- of other courts which have de clined ably performance. to find Title interferes with work VII violations on more egregious 1604.11(a)(3). Sears, facts. Scott v. C.F.R. Roe § Co., (7th buck & Cir. We do not think that these standards are 1986), the Seventh analyzed Circuit a fe Supreme inconsistent. The Court used the male employee’s working conditions for synon words “abusive” and “hostile” sexual harassment. It noted that she was ymously Meritor. 477 U.S. at 106 repeatedly propositioned and winked at at 2405. The ap S.Ct. Meritor Court also supervisor. When she asked for assist proved paid of and detailed attention to the ance, he asked “what get will I for it?” guidelines, implicitly EEOC’s and it slapped Co-workers her buttocks and com adopted position the EEOC’s that sexual mented that she must moan and groan unreasonably harassment which interferes during sex. The court examined evi performance with work violates Title VII. dence to see if “the demeaning conduct and Similarly, although in expressly stereotyping such anxiety cause[d] corporated limiting language Rog plaintiff debilitation that work part ers the third of our framework ing ‘poisoned’ were conditions within the Jordan, part encompasses also the meaning of Title VII.” Id. at 213. The requirements EEOC’s C.F.R. court did not consider the environment suf 1604.11(a)(3). Conduct which unreason ficiently hostile. at 214. Id. ably performance interferes with work can Similarly, in Rabidue v. Osceola Refin alter a condition of create Co., ing Cir.1986), 805 F.2d 611 cert. an abusive environment. Contra denied, 481 U.S. 107 S.Ct. Pollack, Sexual Harassment: Women’s (1987), L.Ed.2d 823 the Sixth Circuit re Experience Legal Definitions, vs. 13 Harv. fused to a hostile find environment where 35, (1990) Women’s Law J. 60 that (arguing the posters contained of naked opted the Meritor court for the strict stan partially women, and dressed and where a dard in Rogers enunciated instead of the male customarily employee called women standard). more lenient EEOC “whores,” “cunt,” “tits,” “pussy,” and re ass,” ferred plaintiff to as “fat specifi and Although previous Meritor and our cases stated, cally “All good that needs a bitch the establish framework for the resolution lay.” dissent, strong Over majority a the cases, of hostile environment they do not held that the sexist remarks and pin-up the dictate the outcome of this case. posters only had a de minimis effect and conduct falls somewhere between forcible seriously plaintiff’s did not psy affect the rape epithet. and the mere utterance of an chological well-being. 60, 67, 2402, 477 U.S. at 106 S.Ct. at 2405- 06. pervasive conduct was not as His agree We do not with the standards set the Rabidue,6 sexual comments and sexual advances forth in and and Scott we choose Hotel, in which we created Hacienda held not to follow those decisions.7 Neither unlawfully working an hostile “anxiety environment. Scott’s search and debilita- 881 1504. “poison” working F.2d tion” to sufficient envi- 1469, City Philadelphia, We note that the Sixth Circuit has Rabi- called Andrews v. F.2d 895 of (3d Cir.1990) question subsequent (explicitly rejecting due in at least two into 1485 Rabidue 630, opinions. Corp., holding derogatory language In Yates v. Avco F.2d and that directed (6th Cir.1987), pictures panel pornographic at women of the Circuit of women Sixth expressly adopted arguments working serve as ment). of a hostile one of the main in evidence environ- dissent, that ac Rabidue per tions should be viewed from the victim’s case, Co., spective. plaintiffs In Davis v. Monsanto Chemical 7. We note that unlike this denied, (6th Cir.1988), alleged working cert. Scott and that a hostile Rabidue discharge. 490 (1989), 109 S.Ct. environment contributed to their U.S. L.Ed.2d again the Sixth Circuit once criticized We need not and do not address how or wheth- reading analysis. discharge er a Rabidue's limited of Title See also would alter our VII. Bell Tele- example, in v. Southern that a Vance requirement nor Rabidue’s

ronment Co., Telegraph phone and well-being be “seri- psychological plaintiffs Cir.1989), that court held directly lan- follows ously affected” was found which a noose two incidents is the harasser’s It guage Meritor.8 station were severe, employee’s work hung over an pervasive or which must conduct jury sufficiently severe to constitute of em- in the conditions alteration not environment. racially hostile on a question en- need not Surely, employees ployment. psycho- until their harassment dure sexual evaluating Next, believe that seriously well-being is affected logical of sexual severity pervasiveness anxiety and they suffer extent that per harassment, on the we should focus Accord, Policy Guid- EEOC debilitation. F.2d at King, 898 the victim. spective of Harassment, 8 Fair Em- on Sexual ance (CCH) 537; Compliance Manual (BNA) Manual Practices ployment (1988) (courts ¶ 3112, C at 3242 (March 19, Al- 405:6681,6690, n. 20 perspective the victim’s consider “should epithet by itself fails though an isolated acceptable of stereotyped notions a hostile action for a cause of support whether behavior.”) If we examined environment, protection of em- Title VII’s alleg engage person would a reasonable into discrimination comes from sex ployees conduct, run the harassing we would edly of point where victims long play before level of reinforcing prevailing risk of psychiatric as- require harassment could continue discrimination. Harassers sistance. particular dis merely because a to harass common, and vic criminatory practice was closely Meritor examined haveWe remedy. no would have of harassment tims cases, and we believe previous and our sufficiently severe analyze was harass prefer conduct We therefore Elli of the conditions A perspective. to alter the victim’s ment from create an abusive the victim’s understanding complete son’s things, among We first note other requires, environment. view showing severity perspectives or serious analysis the different required many in men harassing conduct varies women. Conduct men and ness many frequen unobjectionable offend pervasiveness with the consider versely University See, King e.g., Lipsett v. Board women. the conduct. See cy of (1st 881, Rico, 898 Cir. Sys F.2d 864 University Wisconsin Puerto Regents of of believe, might (7th Cir.1990) 1988) (“A supervisor 533, male 537 tem, 898 F.2d him to legitimate it for enough, example, that is for single act can be (“[although a that she has a subordinate a tell a create female repeated incidents generally, ... The female environment, figure’ legs.’ or ‘nice ‘great with stronger claim of hostile however, subordinate, find such com may depending on the claim strength of 637, Yates, offensive”); at 819 F.2d intensity of ments and the of number incidents (“men vulnerable Andrews, 2 and women are n. incident.”) 895 Accord each by different ways offended City different 1484; v. New York F.2d at Carrero Ehrenreich, behavior”). Pluralist (2d also 569, See 578 Authority, 890 F.2d Housing Ideology Manual, The Powerless Men: Myths and Cir.1989); Compliance Harassment (CCH Sexual 3112, ¶ For 615, 3243 Reasonableness atC of readily work- earlier, explained can envision Supreme "[o]ne explained Court As we position heavily polluted with dis- adopted ing implicitly the EEOC’s so Meritor environments unreasonably completely in- destroy which the emo- that sexual harassment as to crimination Title performance minority violates stability terferes with work psychological of tional 65, Con- at 2404-05. 66, 106 S.Ct. Meritor, VII. 477 U.S. at U.S. at group workers.” per- unreasonably with work interfere duct can 2405, Rogers, quoting F.2d at 238. S.Ct. at causing and with- debilitation formance without Rogers that a hostile court did not hold affecting employee’s psycholog- seriously an out when the emotional exists environment well-being. Perhaps in Scott the confusion ical stability is com- psychological workers of quotation in Meritor from a Rabidue flows destroyed. pletely Rogers analysis, court Rogers. its from In Law, 1177, (1990) 99 Yale L.J. 1207-1208 would sufficiently consider severe or perva (men tend to view some forms of sexual sive to alter the conditions of employment harassment as “harmless social interac- and create an abusive environm only overly-sensitive tions which women Andrews, (sexual ent.12 895 F.2d at 1482 Abrams, object”); Gender Discrimi- harassment must detrimentally affect a nation and the Work- reasonable person of the same sex Transformation of Norms, 1183, place 42 Vand.L.Rev. 1203 victim); Yates, 819 F.2d (adopting at 637 (the (1989) characteristically male view de- “reasonable woman” standard set out in picts sexual comparatively harassment as Rabidue, 611, (Keith, J. dis amusement). harmless Comment, senting)); Sexual Harassment Claims Abusive Work Environment range We realize that there is a broad VII, Under Title 97 Harv.L.Rev. viewpoints among women group, as a but (1984); Wanrow, State Wash.2d many believe women com- share cf. 221, 239-241, (1977) 559 P.2d 558-559 mon concerns which men do not necessarily (en banc) (adopting reasonable woman stan example, share.9 For because are women defense). dard for self disproportionately victims of rape and sex- assault, stronger ual women a incen- adopt perspective We of a reasonable tive to concerned with sexual behavior.10 primarily woman because we believe that a who are victims of Women forms of mild person sex-blind reasonable standard tends understandably to be male-biased system- and tends to worry whether a harasser’s conduct atically ignore experiences of women. merely prelude to violent sexual assault. The reasonable woman standard does not Men, rarely who are victims of sexual as- higher protection establish a level for sault, may view sexual conduct in a vac- women than men. v. South- Cf. Rosenfeld appreciation uum without a full of the so- Co., ern 1225-1227 Pacific setting cial underlying or the threat of (9th Cir.1971) (invalidating under Title VII may perceive. violence that a woman paternalistic state restricting labor laws women). opportunities order employers

In to shield In- stead, having gender-conscious to accommodate the idiosyncratic examination hyper-sensitive concerns of the sexual par- rare em harassment enables women to ployee, ticipate we hold plaintiff equal that a on female foot- prima ing states By acknowledging facie case of environ hostile men. alleges ment harassment trivializing when she the effects of sexual harass- women, conduct which a reasonable woman11 on ment reasonable can courts explains: many 9. One writer "While women Sourcebook Criminal Justice Statistics 1988 at sex, positive hold attitudes about uncoerced table 3.19 an estimated 73 greater physical vulnerability their and social 100,000 every females in country were wary sexual coercion can make women al encounters. have been raised in a of sexu- reported rape victims. Federal Bureau of Inves- Moreover, women American tigation, Reports Crime 1988 at 16 Uniform society rape where (1989). unprece- sex-related violence have reached levels, industry dented pornography and a vast course, employees allege 11. Of where male coercion, images creates continuous objectification of sexual engage co-workers in conduct which creates a Finally, and violence. women as environment, appropriate hostile victim’s group a tend to hold more restrictive views of perspective be that of a would reasonable man. type relationship both situation of appropriate. which sexual conduct is Because inequality and coercion with which it is 12. We that the realize reasonable stan- woman women, frequently so associated in the minds dard will not address conduct which some unexpected appearance sexuality in an women find offensive. Conduct considered setting equality or context of ostensible can be by many today may harmless be considered Abrams, anguishing experience." Gender discriminatory Rogers, in the future. F.2d Discrimination and the Work- Transformation of Fortunately, inquiry at 238. the reasonableness Norms, place (1989). 42 Vand.L.Rev. adopt today which we is not static. As the change, views of reasonable women so does too Justice, Department States United Office 10. acceptable the Title standard of VII behavior. Statistics, Programs, of Justice Bureau of Justice than to woo Bergerac wishing men no more ensuring that neither work towards There is no evi- with his words.14 Ellison gauntlet “run a have to nor women will ill will toward Gray harbored dence privilege for the in return sexual abuse in his “love let- He offered Ellison. even living.” and make being allowed to work Ex- if she wished. ter” to leave her alone Dundee, Henson v. see is not difficult to light, in this it amined Cir.1982). why court characterized the district victim stan- the reasonable We note that and trivial. conduct as isolated today conduct as adopt classifies dard we Ellison, however, did not consider even sexual harassment when unlawful Gray’s first note shocked acts to be trivial. their conduct not realize that harassers do receiving the frightened her. After working environment. creates a hostile letter, really upset three-page she became compliments by co-work- Well-intentioned immediately re- again. frightened She of a can form the basis supervisors ers or Gray be transferred. quested that she or if a rea- cause of action suggests prompt response supervisor’s Her plain- as the of the same sex sonable victim the conduct did not consider that she too suffi- consider the comments tiff would Gray When Ellison learned trivial. to alter a condi- ciently or severe Mateo, im- she arranged to return to San and create an abusive employment tion of transfer, imme- mediately and she asked to That is working environment.13 because complaint. diately filed an official fault-based tort scheme. Title VII is not a consequences VII is aimed at “Title law say as a matter of We cannot practice and not of an effects idiosyncratic or that Ellison’s reaction was of co-workers at the ... motivation” that a reason We believe hyper-sensitive. 239; F.2d at see employers. Rogers, 454 a similar reac could have had able woman Co., 401 U.S. Griggs v. Duke Power also note receiving the first bizarre tion. After 849, 854, 424, 432, L.Ed.2d 158 knew, S.Ct. barely Elli Gray, person she discriminatory (1971)(the intent absence of leave Gray to tell son asked a co-worker em- an otherwise unlawful does not redeem Gray sent Despite request, her alone. liability un- ployment practice). To avoid disturbing long, passionate, letter. her a VII, to ed- employers der Title “watching” and her he had been He told workforce to elimi- ucate and sensitize their her; repeated ref he made “experiencing” which a reasonable victim sex; nate conduct would write he said he erences harass- consider unlawful sexual knowing would way of again. Ellison had no (“Preven- 1604.11(f) ment. 29 C.F.R. See A Gray do next. reasonable what the elimination of conduct, tool for tion is best could consider woman harassment.”) Ellison, sufficiently severe alleged employ a condition of pervasive to alter the im- of this case illustrate The facts working envi create an abusive ment and per- considering the victim’s portance of ronment. the al- Analyzing the facts from spective. major problem is a harassment viewpoint, Gray could be Sexual leged harasser’s Adopting workplace.15 the victim’s modern-day Cyrano de portrayed as a Board, Systems Protection Sexual States Merit sexual advances are in If sexual comments or course, Up- An they, in the Federal Government: recipient, Harassment fact welcomed of sexual harassment Victims harassment. Title VII’s date do not constitute sexual employ- intangible "pay emotional costs inflicted prohibition all the of sex discrimination withdrawal, humiliation, frustration, totally by anger, require does not desexualized ment life,” family dysfunction as well as medical place. work litigation expenses, job expenses, search ex- Rostand, (B. sick leave and Bergerac penses, the loss of valuable Cyrano Hooker and 14. E. de 1963). Id. at 42. Sexual harassment annual leave. trans. government million from $267 cost May federal productivity, May 1987 for losses employees 1985 to percent 15. Over 40 of female federal costs, employee replacement sick leave reported harassment in incidents of sexual Id. at 39. roughly United costs. as in 1980. the same number perspective ensures that courts will not known.” Id. at 1515-1516. Because ingrained “sustain notions of reasonable management employees level at the hotel by behavior fashioned the offenders.” took no action to redress the sexual harass- Rabidue, Lipsett, quoting, 864 F.2d at they ment of which knew and other harass- (Keith, J., dissenting). 805 F.2d at 626 ment they known, of which should have Congress codify did not enact Title YII to held employer liable. Id. at 1516. We prevailing prejudices. sexist To the con- have not addressed what remedial actions trary, “Congress designed pre- Title VII to by employers taken can shield them from perpetuation vent the stereotypes and a liability for sexual by harassment co-work- degradation sense of which serve to close ers. discourage employment opportunities guidelines The EEOC recommend that an Andrews, for women.” 895 F.2d at 1483. employer’s remedy should be “immediate hope We that over time both men and appropriate.” 1604.11(d).16 29 C.F.R. § women will learn what conduct offends rea- Employers duty have a to “express])] sonable members of the other sex. When strong disapproval” harassment, of sexual employers employees internalize the “develop[] and to appropriate sanctions.” standard of conduct we establish 1604.11(f). 29 C.F.R. The explains EEOC § today, gap in perception current be- employer’s that an appropriate action is bridged. tween the sexes will be where it “fully the conduct with- remedie[s] adversely out affecting the terms or condi- IV tions of the charging party’s employment We next must determine what remedial (for in some example, by manner requiring by employers actions shield them from lia- the charging party to work ... in a less bility under Title for VII sexual harass- location).” desirable Compliance Supreme ment co-workers. The Court (CCH) 615.4(a)(9)(iii), 3103, Manual at H employer Meritor did not address liabili- ty for sexual harassment co-workers. required Fourth Circuit has case, that a In that employer Court discussed remedy “reasonably liability calculated to end for a hostile environment created Dole, harassment.” by a Katz v. 709 F.2d supervisor. (4th Cir.1983). It has held that an brief, The Court’s discussion was and it employer properly remedied sexual harass declined to issue a definitive rule. 477 U.S. by fully investigating allegations, ment hand, at 106 S.Ct. at 2408. it On one issuing warnings written to refrain from employers strictly held that are not liable conduct, discriminatory warning for by supervisors. Id. subsequent offender that a infraction will hand, On the other employers it stated that suspension. USAIR, result in Swentek v. can be liable sexual harassment without Inc., (4th 830 F.2d 552 Cir. alleged actual notice of the discriminatory conduct. agreed Id. It with the EEOC Similarly, in Barrett v. Omaha National agency principles that courts should look to Bank, (8th 1984), Cir. to determine liability. Id. Eighth Circuit held that an employer prop erly remedied a hostile applied

We environ Meritor v. Ha- E.E.O.C. Hotel, by fully ment Cir.1989). investigating, reprimanding a cienda 881 F.2d 1504 grossly conduct, “employers inappropriate We harasser for held are liable for fail- placing ing remedy prevent probation the offender on hostile or offen- for nine ty days, sive manage- warning any work environment of which the offender that knew, employees ment-level or in the exer- further misconduct would in dis result charge. cise of reasonable care should have The court concluded Title VII regulation respect supervisory employees) 16. That states: "With to con- knows or should have conduct, employees, employer duct between fellow known of the unless it can show that it responsible appropriate for acts of sexual harassment the took immediate and corrective ac- (or employer agents where the its tion.” Francisco. Ellison to San rary all har- transfer employers to fire require does not Mateo over San to work San preferred assers. strongly believe We Francisco. should that remedies We too believe not be harassment should of sexual victim “reasonably to end calculated be harasser. of the punished for the conduct Katz, An F.2d at 256. harassment.” wholeheartedly agree with the EEOC We' persuade individ remedy should employer’s harassment should of sexual that a victim con unlawful harassers to discontinue ual location in a less desirable not have to work that all harassment We do not think duct. remedy for employer’s result of an as a Barrett, dismissal, F.2d at warrants Compliance harassment. sexual rather, 427; be “assessed remedies should (13103, 615.4(a)(9)(iii), at (CCH) Manual to the seriousness proportionately Malibu Grand Dornhecker v. offense.” (5th 307, 309 Cir. Corp., 828 F.2d Prix government’s Ellison maintains 1987). impose sufficient Employers should it did not remedy was insufficient because workplace free from to assure a penalties Gray it allowed discipline Gray and because essence, then, we In harassment. sexual Mateo after six- to San to return employ the reasonableness of think that though Even the hostile separation. month ability on its to remedy depend will er’s eliminated when had been environment who en by person stop harassment Francisco, working in Gray began San evaluating the In in harassment.17 gaged response say government’s that the cannot may remedy, the court adequacy of the under Title VII. reasonable was remedy’s ability take into account also suggests that Ellison’s appeal on record to refrain potential harassers persuade to express strong disapprov employer did not Indeed, meting conduct. from unlawful conduct, reprimand did not al of into ac not take punishments that do out probation, and did Gray, put him on did not harassment- to maintain a the need count repeated harassment him that not inform subject working environment free suspension termination. would result to suit the EEOC. employer 552; Barrett, 726 Swentek, F.2d Cf. Here, argues employer Ellison’s Gray’s employer Apparently, 424. F.2d statutory its obli complied it stop harassing Ellison.18 only told him to free from provide workplace gation to re more than a mere requires Title VII investigat promptly It harassment. discriminatory con quest to refrain re Ellison allegation. When ed Ellison’s F.2d Rumsfeld, v. duct. DeGrace training in Mateo from turned to San (1st Employers send the n. Cir. 805 5 working Louis, longer Gray was no St. message potential to harassers wrong to San Gray returned Mateo. When San discipline employees for they do not when Ellison’s Mateo, government granted prove If can on Ellison sexual harassment. to San temporarily request to transfer Gray knew or should have remand that Francisco. was unlawful and that his conduct known to take even the government failed that the government’s accept the decline to We action, disciplinary the dis form of mildest Gray to return its decision argument that govern should hold that trict court envi- a hostile Mateo did not create to San remedy was insufficient un initial ment’s govern- Ellison because for ronment point, genuine At issues Title VII. this tempo- der request for a granted Ellison’s ment reinforcing any pre- inquiry runs the risk of appropriate would do not think that the 17. We do by employers employer vailing do level of discrimination a reasonable is what remedy way Brooms directly Contra the sexual harassment. on the best to elimi- to focus fails Co., Cir. Regal Tube workplace. from the nate statutorily 1989). Although employers obli are provide workplace free from sexual gated counseling Miller session with Neither the reluctant, harassment, they may business was a disci- to San Francisco nor transfer reasons, highly pro high ranking punish plinary the IRS. act employees harassment. for sexual ductive addition, employer asking what a reasonable concerning Gray fact remain whether know how often Ellison of material disciplined Gray, government properly have to interact at San Mateo. the Moreover, maintains that her em- Ellison further it is not clear to us that the ployer’s Gray cooling-off period decision to allow to transfer six-month was reason- ably to the Mateo office after a six- calculated to end the back San harassment or cooling-off period proportionately month rendered the assessed to the seriousness remedy Gray’s insufficient. ar- of government’s She conduct. There is evidence in the Gray’s presence would cre- gues suggests government mere record which that the working a hostile environment. Gray ate intended to transfer to San Francisco

permanently only Gray allowed to re- in We believe that some cases the promised turn to San Mateo because he employee presence mere of an who has drop grievances. some union We do know engaged particularly in severe or request input that the IRS did not Ellison’s working harassment can create a hostile or even proceedings inform of the be- Unisys environment. Paroline See agreeing Gray fore to let return to San (4th Cir.1989). Corp., 879 F.2d 106-07 attempt Mateo. This failure to even liability failing To avoid under Title VII for impact Gray’s determine what return environment, remedy employers a hostile would have on Ellison shows insuffi- may employees remove even have to regard cient for the victim’s interest presence if mere their would avoiding working a hostile environment. working render the environment hostile.19 remand, the fully On district court should again, we examine whether the mere Once explore concerning the facts govern- presence of a harasser would create hos Gray ment’s decision to return to San Ma- perspective tile environment from of a teo.20 reasonable woman. The district court did not reach the issue V government’s of the of the reasonableness remedy. appeal, the scant on We reverse the district court’s decision Given record allege prima that Ellison did not we cannot determine whether reasonable facie mere woman could conclude case of sexual harassment due to a hostile environment, presence at Mateo six after the San months and we remand for alleged proceedings harassment would create an abu- further consistent this Although opinion. Although sive environment. we are aware we have considered the (which severity Gray’s light conduct evidence most favorable to Elli- granted not as some son court do consider to be as serious because district harassment), government’s summary judg- other forms of we do not motion for If harassers are not removed from the work- In order to avoid the loss of well-intentioned place presence employees, employers when their mere creates a hostile productive must educate environment, employers fully have not remed- and sensitize their workforce. employers ied the harassment. When cannot schedule harassers to work at another location 20. We note that if the district court decides that hours, may during employers or different government’s reasonably were actions not employees presence cre- to dismiss whose mere end the calculated to harassment or assessed acknowledge ates a hostile environment. We proportionately to the seriousness of the con dismissal rare instances be neces- duct, primarily injunctive. Ellison’s relief will be sary when harassers did not realize that their provide compensatory Title VII does not However, conduct was unlawful. only we think that punitive damages. See Williams v. United States very, very few will cases harassers Administration, General Services when unaware that their conduct is unlawful Cir. that conduct is so serious that a reasonable In the event that the district court decides to victim would thereafter consider the harasser’s relief, equitable award Ellison court should presence those few mere instances, sexual harassment. any fail to consider relevant commitments proper we think it to conclude government made settlement his that the harasser should have known that agreement. her conduct was unlawful. 2000e of persons. Section applicable to all course, the district ment, we, reserve for of legal a use of presupposes factual issues. the of all Title VII the resolution court the persons and apply to all term can that REMANDED. REVERSED and individually tailored of a more impossibility of that the authors It is clear standard. dissenting: STEPHENS, Judge, District a difference opinion intend majority the appeal in the us on comes to This case and the woman” the "reasonable between summary judg- a granting of of the wake the VII cases on man” in Title “reasonable trial, therefore was no ment motion. There not have the same that men do assumption examination for cross opportunities no neces- This is not women. sensibilities as addition, there are factu- In witnesses. the to circum- response sarily A man’s true. by can lead in the record that gaps al their effect by women and faced stances that it Consequently, I believe speculation. given circum- can be and upon women to es- case with which inappropriate is an to be understood expected be stances will be precedent which legal a new tablish by men. of like na- subsequent cases binding in all I refer to the imagination to in the Circuit. ture Ninth no stretch of the It takes the term “reasonable majority’s use of emanating from complaints two envision woman,” ambiguous I find a term the same workplace regarding the same inadequate. therefore conditions, by a brought woman one Application of the by a man. the other VII, of Title 2000e Nowhere section puzzlement a presents “new standard” plaintiff in this which the the section under assumption that men’s of the which is born suit, any there indication brought is case a woman sees see eyes not what any do provide for Congress to that intended surprising that eyes. I find it through in the area of treatment equal than other to evidence on designed finds no rights. legislation majority the need civil gender generally sure subjects. I am not any achieve balanced these workplace which and harmonious neutral concludes that majority also whether the quality production and the improve question are the the woman and man fact, In the Su- employees’ lives. of the this evidence on without also reasonable preference has shown preme Court irresistibly I am drawn subject. gender not that are against systems conditions of view neutral, hiring quotas. See as race such affected, as examined itself should be Co., 488 v. J.A. Croson City Richmond conduct of the things, by among other L.Ed.2d 109 S.Ct. U.S. working there to whether people most may be the (1989). While women to ful- existing is conducive workplace as type of conduct targets of this frequent event, any filling goals of Title VII. case, not the they are is at issue in this issues which unresolved factual these are it I is incumbent only targets. believe summary judgment. preclude case to use terminol- this upon the court in sexually on the victim The focus of all who the needs ogy that will meet parallel its discriminatory conduct Title has under this section recourse seek defense put more in focus rape that are trials in the Possible alternatives VII. approach include on the neutral rather than gender victim’s conduct line with on the “victim,” “target,” “person.” person accused. conduct of the unlawful pointed out that have Modern feminists used man” as it is The term “reasonable upon evidence by the defense concentration torts, traditionally refers law of in the appearance background, concerning the regardless average person, adult have claiming to of women and conduct reason- that can the conduct gender, and carefully controlled raped must be been her. For of him or ably expected shifting the effectively to avoid the court being that are legal issues purposes of the It is the victim. proof to the burden it is addressed, assumes that a term such accused, trial, Summary judgment not the victim who is on appropriate is not accused, this the conduct of the case. it is therefore victim, that of the that should be sub- jected scrutiny.1 Many legisla- state responded viewpoint, to this

tures governing presentation

rules of evi- rape cases have according-

dence evolved Galvin,

ly.2 Shielding generally, Rape See in the

Victims State and Federal Courts: a Decade,

Proposal for the Second 70 Minn.L. 1986). (April

Rev. 763 my opinion It is that the case should be CAPOVILLA, Petitioner, Louie J. proceed reversed with instructions to certainly trial. filling This would lead to v. record, gaps by scanty the factual left RAILROAD RETIREMENT happened such as what at the time of or BOARD, Respondent. after the visit of Ellison to house to subsequently cause her to be fearful of his No. 89-70193. presence. existing The circumstances place where work men are em- United Appeals, States Court of ployed they are different than are where Ninth Circuit. employees. there are male both and female Argued 7, and Submitted June 1990. readily The existence of the differences is recognizable employees conduct of 24, Decided Jan. 1991. changed appropriately. can be This is requires. what Title VII Whether a man or peculiar

a woman has sensibilities to the

person they necessarily and what are is not they

known. Until become known mani-

festing way, they themselves in an obvious part

do not become circumstances of place. Consequently, govern-

the work

ing equation element in the is the work- itself,

place concepts viewpoints employees.

individual This does not con- existing legal concepts.

flict with proposed

The creation of the “new stan- applies only

dard” which to women will not

necessarily potential come to the aid of all type

victims of the of misconduct that is at I gender

issue this case. believe that a greatly

neutral standard would contribute clarity

to the of this and future cases in the

same area. Rioz, 905, 412; People Cal.App.3d Vhay, 2. See Fed.R.Civ.Pro. The Harms of 909- Cf. Asking: (1984) (evidence Comprehensive Towards a Treatment Cal.Rptr. Harassment, of Sexual 55 U.Chi.L.Rev. engaged activity whether the victim in sexual 1988); Fechner, (Winter Toward an Ex- n. 78 men, gain, pecuniary with numerous even for panded Conception Sexual of Law Reform: procedural safeguards controlled in evi- Harassment Law and the Reconstruction of Facts, law). dentiary (Spring 23 U.Mich.J.L.Ref.

Case Details

Case Name: Kerry Ellison v. Nicholas F. Brady, Secretary of the Treasury

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 5, 1991

Citation: 924 F.2d 872

Docket Number: 89-15248

Court Abbreviation: 9th Cir.