*1 summary judgment manual. The revisions to the manual were in favor of Westin En- substantially completed by late 1994 and gineering, Inc. 16, 1995,
published on-line on March one High-
month before Westin terminated time, At
stone. Westin sent an e-mail
message employees all advising them of changes. was given during Notice also Marilyn WILLIAMS, H. meetings, employees
staff often at- Plaintiff-Appellant, Highstone’s tend. At the time of termi- nation, the manual read as follows: v. Note that all employees Westin are at- CORPORATION, GENERAL MOTORS employees will and that Em- neither the Defendant-Appellee. ployee Agreement nor this manual are No. 97-3351.
guarantees continuing employment, added). (emphasis Appeals, United States Court of right unilaterally Westin has the change Sixth Circuit. provisions in its manual. In In re Certi- 21, Argued April 1998. Question (Bankey v. Storer Broad. fied Co.), 5, Decided Aug. 432 Mich. 443 N.W.2d (Mich.1989), Michigan Supreme Court Rehearing and En Rehearing Banc held that a company’s policy written state- Sept. Denied 1999.* ments, which a legitimate expecta- created in the employee discharge tion for cause
only, unilaterally could be modified
employer. The court also held that
employer reasonably notify must all of the employees
affected of the change. Id.
The record shows that Westin sent two
e-mails notifying employees changes its policy published
to the manual and
manual employees on-line so all could have
easy access to the manual. Westin satis-
fied its burden by reasonably notifying employees
affected of the changes to the
manual. Although Highstone claims he manual,
did not receive the revised
does not matter because the addition of term, “at-will,” did change High- employee,
stone’s status as an at-will
only employment. clarified his origi- Highstone
nal manual received did not any just-cause promises,
contain
therefore he employee at-will dur-
ing regardless his at Westin change the manual.
III. above,
For all of the reasons set forth
we AFFIRM grant the district court’s
* Judge Ryan grant rehearing would reasons stated in his dissent. *5 DAUGHTREY, RYAN,
Before: LAY,** Judges. Circuit DAUGHTREY, J., opinion delivered LAY, J., court, joined. in which 569-72), RYAN, delivered a (pp. J. dissenting opinion. separate OPINION DAUGHTREY, Judge. Circuit Motors Marilyn sued General Williams than employer for more Corporation, her sexual harassment under years, alleging Act, 42 Rights U.S.C. Title VII of the Civil grant seq. §§ 2000e et The district Motors, summary judgment to General ed alleged incidents of finding that the offensive, harassment, not so while were a hos pervasive as to constitute severe or under the work environment standard tile Inc., Systems, v. set out Harris Forklift 367, 126 L.Ed.2d 510 U.S. (1993). found that The court further prima facie case Williams had *6 under Title VII. of retaliation summary judg- grant affirm the of We claim. With re- ment on the retaliation spect to the hostile-work-environment claim, however, al- conclude that we context, incidents, in create leged seen of fact as to whether material sufficiently perva- severe or conduct was VII, Title rise to a violation of give sive to grant of we therefore reverse the sum- Moreover, that claim. mary judgment on court em- we believe the district because concluding analysis in ployed an incorrect alleged conduct suf- that Williams had finding of a hostile work ficient to sustain environment, clarify appro- we write to for hostile-work-environ- priate analysis briefed), (argued and S. Colucci Mark claims. ment OH, Plaintiff-Appellant. for Youngstown, AND FACTUAL PROCEDURAL (briefed), W. Ed- S. Walker John Robert BACKGROUND , wards, Mary Hughes (argued), II Jordan Williams, Marilyn began (briefed), Jones, plaintiff, The Day, Pogue, & Reavis Corporation’s Cleveland, OH, working at General Motors Defendant-Appellee. ** Circuit, designation. Eighth sitting by Judge Lay, P. Circuit Honorable Donald for the Appeals the United States Court of Warren, Ohio, in Delphi-Packard conspired Plant in 6. Workers against her: she years, she worked 1965 or 1966. Over the was forced to take the midnight shift departments. September in various From retired, Bivolesky when Steve even 1996,1 May until Williams worked though Don Giovannoe had originally crib, a warehouse used to store the tool agreed job. to take the components materials and used at 1995, September 7. In when she plant, from which materials were distribut- shift, came for her midnight she dis- an ed attendant to assemblers who covered a box of tool crib release forms requested May them. In Williams glued top to the of her desk. third, “midnight was transferred to the 8. day Later on the same she discover- shift,” vacancy to fill a caused another desk, glued ed the box to her Williams employee’s retirement. claims to say, have heard Giovannoe working midnight While shift in the “I’m sick and tired of fucking these crib, alleges subject- that she was Williams women.” people As Williams waited on ed to sexual harassment in the form aof window, at the crib Giovannoe came over working hostile environment. As summa- to the desk and threw a box on it. by the district rized its memoran- got Williams and Giovannoe into a ver- opinion, following: dum she ending bal altercation with Giovannoe Giovannoe, 1. Don hourly tool crib boxes, throwing couple another the last employee, constantly used “F-word” of which grazed hip, Williams’ but [sic] part vocabulary. as his did not hurt her. ap- 2. In June Giovannoe 9. Williams claims that she was denied proached the window the counter of overtime. crib, the tool Appellant say, heard him slut.” “Hey 10. complained She that she was the July Ryan, Pat gen- her only person key who did not have a to supervisor, eral talking while the office. co-worker, Dodie, Williams’ looked at 11. Williams stated that she Williams’ something breasts and said only person denied a break. up against the effect of “You can rub me *7 said, anytime.” 12. He also “You would kill She was not allowed to sit at the me, crib, Marilyn. I don’t know if I can table at of the window the but had it, my go handle but I’d die with a smile on to in the back instead. face.” night 13. One when came to Williams A days alleged 4. few after the incident (a work a buggy she found motorized 3, in No. bending Williams was over and supplies) cart haul sitting used to on said, up Ryan came behind her and blocking bug- wooden skid and the other up; just up,” “Back back or “You can gies. She had to find a co-worker to me,” up right back or words to that help her move it. effect. 14. hourly On one occasion a female occasion, 1995, in July 5. On another of worker, Kufchak, padlocked Shalimar at sitting writing
Williams was her desk main crib’s entrance while Williams Compa- the name “Hancock Furniture was inside. ny” piece on a of paper. Ryan up came her, put couple behind his aim around her neck of materials On occasions hers, against and leaned his face were stacked in front of the alternate said, exit, “You blocking left the dick out of the hand.” access and out. May position. 1. In 1996 she was elected to a full-time to hold this representative position. union She continues 560 II. Environment Hostile Work 1996, against Gen- she filed suit May Motors, alleging sexual eral Rights Act Title VII of the Civil Act, 42 Rights the Civil Title VII of under employer from dis prohibits an of 1964 Ohio seq., §§ and under 2000e et U.S.C. any individual with criminating “against un- alleged retaliation law. She also state terms, condi compensation, to his respect and race having filed sex Title VII for der tions, because privileges employment, of or with the Civil charges Ohio discrimination race, color, religion, of such individual’s in 1995. Rights Commission 42 sex, origin.” U.S.C. or national summary granted The district 2000e-2(a)(l). plaintiff may § A establish Motors on both the
judgment
General
proving that the
of Title VII
a violation
claims, finding that the
federal and state
a hos
based on sex created
discrimination
harassment,
incidents
environment. See
or abusive work
tile
offensive,
per-
severe or
were not so
while
Vinson, 477 U.S.
Savings Bank v.
Meritor
a hostile work envi-
vasive as to constitute
57, 66,
2399,
49
91 L.Ed.2d
106 S.Ct.
set out
under the standard
ronment
Homes, Inc.,
(1986);
104
Zaring
Black v.
Inc., 510
Systems,
U.S.
Harris v.
—
Forklift
Cir.)
(6th
denied,
822,
cert.
F.3d
825
367,
21, 114
and also that Williams
at
U.S. -,
172,
114
139 L.Ed.2d
118 S.Ct.
subjective test un-
failed to meet the
had
(1997).
in this form occurs
Discrimination
further found
der Harris. The court
“[wjhen
permeated
is
with
workplace
that her
had failed to establish
Williams
intimidation, ridicule, and
discriminatory
midnight
to the
shift constituted
transfer
sufficiently
perva
insult that is
severe
and,
action
there-
an adverse
conditions of the victim’s
sive to alter the
fore,
facie case of
alleged prima
had not
work
employment and create
abusive
under Title VII.
retaliation
Harris,
21,
510
ing environment.”
U.S.
(citations
quota
and internal
I.
Review
Standard of
recently
Supreme
Court
de novo a district court’s
We review
pervasive”
test—
Fed.
reaffirmed the “severe
summary judgment
under
grant
Faragher
City
v.
holding
v. Harris’s core
City Mt. Clemens
R.Civ.P. 56. See
—in
Raton,
118 S.Ct.
Agency,
Boca
524 U.S.
Envtl. Protection
United States
(6th Cir.1990).
2275, 2283,
(1998),
561 Inc., (1998); Signal, v. ly. See Allied L.Ed.2d 105 Fleenor v. Hewitt Kauffman (6th Cir.1992). (6th Cir.1996) (the 178, Co., 48, Af Soap F.2d 183-184 F.3d 970 81 50 Industries, Burlington standard “is one Faragher ter of failure-to-correct-after- however, longer duty no for an enough it is notice or to act after knowledge of harm”). action; to take corrective em employer
ployers
duty
now have an
affirmative
addressing
Without
the differing stan-
by supervisors.
prevent sexual harassment
employer liability
dards for
based on the
employee
an
has established action
Once
perpetrator
harassment,
the district
involving
tangible
discrimination
“no
able
granted summary
court
judgment on the
action,”
Faragher, 118 S.Ct. hostile
claim on
grounds:
two
2293,
employer
escape liability
can
first,
that Williams had not
conduct
'prevent
if it took reasonable care to
only
or pervasive”
that met the “severe
thresh-
any sexually harassing
and correct
behav
and, second,
old test enunciated Harris
ior. Id.2
that,
subjective
Williams had not “met the
sexually
test for a
hostile work environ-
Supreme
Court has not ruled
ment because she herself
admits
she
appropriate requirements
on the
for a hos
did not feel threatened or harassed when
tile-work-environment
claim stemming
these various incidents occurred.” We
a
from co-worker’s actions. This court has
conclude, however,
pre-
that the evidence
developed a
adopting
framework
the first
genuine
sented Williams does raise a
requirements gov
four elements from the
issue of material fact as to whether she
by supervisor,
erning
but the
subjected
pervasive”
to “severe or
employs
fifth element
a heightened stan
constituting
conduct
a hostile work envi-
establishing employer liability.
dard for
ronment, and we also conclude that she
employer liability
To establish
for harass
adequately alleged
subjective
com-
co-worker,
plaintiff
ment
must show
ponent of
deciding
the claim.
In
other-
employer
should
“knew or
have
wise, the district court committed several
charged
known of the
sexual harassment
analysis,
errors in its
en route to dismiss-
implement prompt
appro
and failed to
ing
“infrequent,
incidents as
not se-
priate corrective action.”
v. Seid
Hafford
vere, not
threatening
humiliating, but
(6th Cir.1999) (inter
ner,
183 F.3d
merely offensive.”
omitted)
quotation
nal
marks
citation
employer
First,
(explaining
'liability for both co
the district
disaggregated
harassment).
claims,
supervisor
plaintiffs
worker and
contrary
See
to the Su-
also,
Centers,
Blankenship
preme
“totality
v. Parke Care
Court’s
of circumstances”
(6th
Inc.,
Cir.1997),
directives,
123 F.3d
cert.
which robbed the incidents of
-
denied,
U.S. -,
Second,
140 their cumulative
effect.3
the dis-
Industries,
Faragher
Burlington
signment.” Faragher,
Robinson Jacksonville “mean and annoying by treatment co- (M.D.Fla.1991). 1486, 1524 F.Supp. workers.” These actions could be viewed by jury humiliating fundamentally The district court in this case in any offensive to woman that work envi- concluded that the conduct alleged was ronment, they go to the core of severe, “infrequent, not threatening workplace Williams’s entitlement to a free humiliating, merely but offensive.” We of discriminatory animus. agree. cannot Under the facts as case, Third, entirety viewed in their “pranks” the district court context, proper dismisses, in their including supplies we believe a ra finding office desk, tional trier of fact could glued being by conclude that to one’s hit a thrown subjected box, area, being Williams was to a hostile work locked in one’s work minimum, Certainly, environment. proper the must be viewed their context. allegations merely raise a of fact than constituting Rather oafish be- mining 4. Because the first four elements of hostile- created a whether the harassment regard- work-environment claim are identical hostile work environment. Each incident of harasser, circumstances, less of the in most harassment contributes to the context addressing involving a claim both occurs; every other incident the totali- harassment supervisors co-workers and harassment ty-of-the-circumstances test set forth in Harris single, can and should conduct incidents, requires re- consideration all analysis unified of the first four elements. At determining gardless perpetrator, when however, least, very allegations all the existence of a hostile work environment. harassment must be considered when deter- *11 addition, raising the standard In part of the havior, as pranks, seen the es professions in for women these circum- surrounding “constellation —in sence, they prove that conduct requiring 1003, includ- stances,” Oncale, at 118 S.Ct. beyond what considered goes well sexually threatening language ing the in other work environ objectively hostile supervisor, a from innuendo aggressive objec unnecessary, because the ments —is work-sabotaging viewed could be well forth in Har subjective tests set tive work envi- a hostile that creates behavior from sufficiently “prevent[] Title VII ris ronment. civility code.” expanding general into course, fact that a dis the Oncale, Of A at 1002. hostile-work- S.Ct. totality of at the look trict should plaintiff court as Williams environment such of the al context and the circumstances that her must still establish environment mean does not leged hostile, and also that she objectively was tradi or long-standing to point courts can the to subjectively perceived environment to excuse women hostility Harris, tional toward at 510 U.S. be hostile. See At harassment. 367; hostile-work-environment Faragher, 118 S.Ct. at attorney asked sense, argument, appropri oral Williams’s and an “[c]ommon While in the conduct context, whether court sensitivity to will enable ate social in our court tolerated this would be case between juries distinguish to courts and not, it would and we believe houses. We ... and conduct simple teasing which standard for sexu reject view that the position person plaintiffs in the reasonable depending on abusive,” varies al harassment severely or would find hostile Thus, disagree we work environment. Oncale, judgments at 118 S.Ct. in Gross v. Tenth Circuit decision with the assumption the court as to woman’s Co., 1531, 1538 53 F.3d Burggraf Const. upon entering a hostile risk environment (10th Cir.1995), in the court rea improper. are soned: sum, a work environment gen- evaluate Gross’ claim must [W]e satisfy legal may a whole viewed as context of a der discrimination environment, of an abusive work definition crude where blue collar environment of a hostile purposes by male and commonly used language is claim, cross though single episode no even Speech might employees. female alle es the Title VII threshold. Williams’s prep in a unacceptable be offensive whole, as a raise gations, taken meeting, or on floor of faculty school subjected was more whether Williams to en- is tolerated in other work Congress, but innocuous differences “genuine than vironments. routinely inter ways and women men act,” Oncale, and there that a woman who do not believe We inappropri summary judgment fore in the male-dominated to work chooses ate. her to be free relinquishes right trades indeed, harassment; find we from sexual B. Need Not Be Sexual reasoning illogical, to be because opinion also The district environ- that the more hostile the means require sex” the “based on misconstrues sexism, ment, prevalent the more claim ment of a hostile-work-environment a Title VII difficult it is for the more and, so, narrowly construes doing too conduct is plaintiff prove that sex-based can constitute sexual type what conduct consti- pervasive sufficiently severe stat example, For the court harassment. Surely work environment. tute a hostile ed: not de- working in the trades do women clearly sexu- nothing there is law than Of course protection from
serve less prank gluing about the ally harassing in a courthouse. working women *12 desk, (3d Cir.1990) (“[T]he a box to a misplacing buggy, offensive conduct is crib, locking in blocking not necessarily required someone to include sexual materials, the crib with if instance.”); entrance even in every overtones Lipsett, 864 (“[verbal presumes one they that were F.2d at purposely attack,] 905 although not done sexual, with the sole intent of annoying explicitly was nonetheless charged Williams. These are the pranks animus, kind of with anti-female and therefore in go workplaces. that on They some do could be found to have signifi contributed not, more, without cantly rise to the level of environment.”); the hostile Hall harassment, must Co., less sexual v. 1010, harass- Gus Constr. 842 F.2d 1014 (8th Cir.1988) (“Intimidation ment. and hostility toward women they because are women (Emphasis in original.) About Williams’s can obviously result from conduct other relationship employee with the who re- than advances.”); sexual Hicks v. Gates marked, “I am sick and tired of these Co., (10th 1406, Rubber 833 F.2d 1415 Cir. women,” fucking the district court wrote: 1987) (rejecting narrow definition of sexual fairly It is clear that there a con- was requires predicate harassment that acts to flict of some sort between Giovannoe nature); be sexual in clearly McKinney v. and Williams which often led to consid- Dole, (D.C.Cir. 1129, 765 F.2d 1138 erable discomfort for in Williams her 1985)(“We have never held sexual workplace. Williams’ While version of harassment or other unequal treatment of facts, taken as true for purposes an employee group employees motion, might this establish hostility, occurs because of the sex employee nothing there is to show that this was must, to illegal VII, be under Title take hostility. sexual the form of sexual or of advances other (Emphasis in original.) Finally, the court clearly incidents with sexual overtones. described the “sexually-related remarks now.”). And we decline to do so Dan Cf. directed toward Williams” of al- category Inc., iels v. Group, 1264, Essex F.2d 937 leged harassment as “encompassing] what (7th Cir.1991) (“Even 1273 though the might arguably be true sexual harassment physical threat Art was not specifically complaints.” nature, in racial may be considered as a Contrary to the dissent’s vehe predicate act in establishing racial harass assertion, ment the law recognizes that environment, ment a hostile work be non-sexual may illegally conduct be sex- cause it would not have occurred but for based where it evinces ani “anti-female black.”). the fact that Daniels was mus, and therefore could be found to have it appears Because this court contributed significantly to the en hostile explicitly never held that non-sexual Lipsett vironment.” University v. conduct can constitute harassment “based Rico, (1st Puerto F.2d Cir. sex,” on we now take opportunity 1988). To establish that was harm join our circuits sister and make clear that sex,” “based on her Williams show “must underlying conduct harass sex, that but for the fact of her would she ment claim not overtly need be sexual in not object have been the of harassment.” Any nature. unequal of an treatment em Dundee, City Henson v. 682 F.2d ployee would not but occur (11th Cir.1982). employee’s gender may, sufficiently if se
Thus, harassing behavior that is vere or pervasive under the Harris stan sexually explicit dard, but is directed at constitute a hostile women and by discriminatory motivated violation of Title VII. The myriad instanc against animus ostracized, women satisfies the “based es which Williams was when See, requirement. on sex” e.g., not, Andrews v. others were combined with gen City Philadelphia, 895 F.2d used, 1485 der-specific epithets as “slut” such inference, having “boyish type Ryan as women,” described create an “fucking person who He was personality!.]” judgment, summary to survive
sufficient people with in the around a lot motivating “joke[d] im- gender that her place.” behavior.5 work co-workers’ pulse for her turns the The district court Test Subjective C. *13 head, substituting subjective test on its correctly noted court The district intended result —to “ban Ryan’s possible a hostile work environ test for that the ter,” per crudely plaintiffs the albeit —for subjective objective and ment has both test must not be subjective ception. Harris, Supreme the In components. that a requiring plaintiff as construed feel Court wrote: Instead, the victim threatened. physically pervasive or not severe is Conduct “subjectively perceive the environ must hostile objectively an to create enough abusive,” Harris, at to be 510 U.S. ment envi- abusive work environment —an which we believe 114 S.Ct. person would a reasonable ronment that sufficiently alleged. Even Williams has beyond Title hostile or abusive—is find noted, though, as the district Likewise, if the victim purview. YII’s the Ryan joking, was thought Williams perceive the envi- subjectively does not is irrelevant harasser intent abusive, conduct has to be the ronment analysis. subjective prong in the court’s the the conditions of actually not altered thought Ryan The fact that Williams is no employment, and there victim’s joke not to be a does meant his comments violation. Title VII necessarily perceived mean that Williams 367; 21-22, Harris, 114 510 U.S. at not Simply put, humor is joke. them as a (reaf Faragher, 118 S.Ct. at see also subjective if the under the test a defense subjective com objective the firming unwelcome. conduct was work ponents of the test for hostile Black, environment); 104 F.3d at see also addition, subjective compo In the re prima facie case does not nent of the misconstrued The district court work plaintiff report that a hostile quire test, subjective requirements subjected A can be plaintiff environment. however, it found as follows: when sufficiently severe to sexual harassment a hostile envi pervasive as to constitute Ryan never also stated
Williams
yet,
a number of valid
ronment and
any way
and that she
threatened her
reasons,
report
the harassment.
physically threatened....
never
felt
inci
report
to
subjective Williams’s reluctance
met
Nor has Williams
consider
entirely
understandable
a hostile work environ-
dents
requirement of
claim,
alleged aggressors
was
actually per-
ing that one of
ment
i.e. that she
get along
to
supervisor and she wanted
be abusive. her
ceived the environment
to
See,
e.g., Faragher,
at work.
policy against
sex-
While aware GM’s
harass
harassment,
(noting that a victim sexual
complained
never
ual
she
accept
to
“may
her ment
well be reluctant
Ryan’s
anyone
to
but
about
behavior
superi-
on a
co-worker,
blowing
the whistle
stated that she
risks
Dodie. She
or”).
if
In
when asked
she
deposition,
that she
her
Ryan
joking
was
thought
or scared
physically
him.
nev-
felt
threatened
felt threatened
She
never
fact,
plaintiff answered:
Ryan,
Ryan
stop.
told
to
Williams
er
anybody there.” As this
admittedly
like I didn't have
example,
non-sex-
5. For
about
Giovannoe,
illustrates,
throwing
clearly
with
non-sexual
ual box
incident
so
statement
Gio[vannoe]
Williams stated:
"Even when
competency much as
abuse can undermine
comes,
me, nobody
they
threw the box at
harassing
explicitly
behavior.
begin
feel
to
So I
to
don’t want to talk me.
my general
complaint procedure
No. I felt because he was
necessary
is not
supervisor,
everything
gone
because
had
every
law,
instance as a matter of
on,
they
trying
and I
like
were
to
need for a stated policy suitable to the
felt
I
push
trying
me out. And was
so
may
circumstances
appro-
desperately
my
years
in. But
get
priately
any
be
addressed
case .when
hit
going
not like he was
me or do
litigating the first element of the de-
something like
me. But
this to
because
proof
fense. And while
that an employ-
many things
going
so
were
on to me on
ee failed to fulfill the corresponding obli-
basis,
like,
daily
I
was
don’t want to
gation of reasonable care to avoid harm
waves,
any
just
get through
make
let me
is not limited to
showing
unreason-
this because I
home and
going
tell-
able
any complaint
failure to use
proce-
ing my husband
this every day,
about
provided
dure
employer,
a dem-
*14
said,
know,
know,
I
you
you
and
I can’t
onstration of such failure will normally
I complain
who can
to.
suffice to satisfy
employer’s
the
burden
Even when
threw the box at
Gio[vannoe]
under the second element of the de-
me,
comes,
nobody
they don’t want to
fense.
talk to
I
I
begin
me. So
to feel like
Indus.,
Burlington
Inc.,
mulgated policy an (emphasis anti-harassment with sum, objec discharge, the focus of the tablished constructive GM clearly by pointing tive/subjective inquiry refuted her claim should remain on (1) person out that Williams was transferred to the whether a reasonable would find objectively hostile, (2) midnight the environment shift after the retirement of plaintiff subjectively employee pursuant whether the found the another to the terms pervasive." Bargaining Agreement conduct "severe or We believe of the Collective has, very minimum, required employee that Williams at the that the with seniority job established a of fact as to wheth the least take the after it subjectively perceived by everyone er she her work en was offered to and refused vironment to be hostile. We further be more senior. improper lieve that the district court made Although Williams admits that she was conclusions based on Williams's failure to person, the least senior and that shifts report officially alleged incidents, in seniority, objects were filled~based on she correctly applied "physically threatened" Giovannoe, employee to the fact that requirement, erroneously required her, permitted more senior to to re- plaintiff that the establish that her work acceptance tract his of the transfer to mid- was "affected" the harassment. nights. It is difficult to see how General allowing Motors can be faulted for Giovan- III. Retaliation Claim *15 floe, employee a more senior who did not alleges Williams also that General accept have to the transfer in the first against filing Motors retaliated her for a place, to retract it. Had Giovannoe not complaint Rights with the Ohio Civil Com originally accepted transfer, the it would pri- § mission. See 42 U.S.C. 2000e-3. A have fallen to Williams. by ma facie retaliation claim is established showing following: CONCLUSION (1) plaintiff engaged activity in an protected by VII; (2) agree Title that the ex- We cannot with the district court plaintiffs] rights that, law, [the ercise of civil as a matter of the conduct al- defendant; (3) that, leged merely known there- in this case was offensive and after, employment pervasive the defendant took an not so severe or as to constitute plaintiff; (4) a hostile work environment. We find that action adverse to the and that there was a causal connection be- alleged, the conduct taken as a whole and protected activity appropriate context, tween the and the ad- viewed in its creates a employment disputed verse action. material fact as to subjected Gould, (6th whether Williams was to a hos- Wrenn v. 808 F.2d tile work environment. We also find that Cir.1987). sufficiently Williams established that she gravamen of Williams's com subjectively perceived her work environ- plaint is that she was switched to the ment to be hostile. We therefore RE- midnight complaints. shift because of her grant summary judgment VERSE the correctly found, As the district court on this claim and remand the case for Williams has not established that a causal proceedings. further protected connection existed between the activity alleged employ However, and the adverse because we conclude that ment action: dispute regarding there is no of fact any Williams has failed to show of the adverse action and its discharge complaint, indices of a constructive causal link to the discrimination and no error of law in the district court's therefore cannot establish that her shift ruling question, transfer amounted to a constructive dis- on this we AFFIRM the charge. However, grant summary judgment even if this court on the retalia- were to conclude that Williams had es- tion claim. RYAN, below, Judge, dissenting. Circuit demonstrates a gender- broader equal protection based standard for an majority opinion Because the has so dra- damages award of for workplace harass- matically radically changed the law in ment under Title VII than it might imply this circuit for actionable sexual harass- at first blush. Not surprisingly, my col- under ment Title VII—and has done so league cites authority no for this remarka- disregard of Supreme United States Court ble broadening of the Harris standard in authority and this binding prece- circuit’s application, at least no enactment by the must respectfully dent —I dissent from Congress, decision the United States II majority’s opinion. Part I have Court, Supreme precedent from this disagreement no with what is written in court. However appealing majority’s III, I Parts and as to those parts of might some, views be to the broad new majority opinion, I concur. my standard colleagues conjured have here is not a correct application of Title I. VII sex discrimination law presently on Unable to a compelling state under case the books. And since precedent- settled Title VII law for overturning the bound intermediate appeals court of is not district court’s conclusion that there is no sitting today, en banc important- more justiciable fact material issue in this case ly, Supreme Court, is we have no sufficient to avoid summary judgment authority to make these views the law. defendant, majority opinion rede- It perhaps worth recalling that Title fines actionable sexual un- discrimination VII does not establish a cause of action for der Title VII to include harassment that is harassment in workplace, even harass- sister, My not based on sex. her with targeted ment at a opposite member of the usual admirable candor and intellectual Nor, fact, sex. as a matter of has Con- honesty, that, *16 unmistakably declares in ef- gress authorized an award of damages for fect, she is the law taking of actionable workplace harassment that is sex related. sexual harassment to a new level. She What Congress has VII, forbidden in Title states: case, as relevant to this workplace is Because it appears this court has nev- harassment that results in discrimination er explicitly held that non-sexual con- based on only sex—and then when the sex- duct can constitute harassment on based based harassment has created a “work- sex, we now this opportunity join take place permeated ... with ‘discriminatory our sister circuits and make clear intimidation, ridicule, and insult’ ... the conduct underlying a sexual harass- is ‘sufficiently severe or pervasive to alter ment claim need not be overtly the of conditions the victim’s nature. Any unequal of an treatment and an working create abusive environ- ” employee that not would occur but for Harris, 21, ment.’ 510 at 114 U.S. S.Ct. the employee’s may, if gender sufficient- added) (emphasis 367 (quoting Meritor ly pervasive severe or under the Harris Bank, Vinson, Sav. 57, FSB v. 65, 477 U.S. Inc., Sys., 17, [v. 510 114 U.S. Forklift 67, (1986)). 49 L.Ed.2d (1993),] L.Ed.2d 295 stan- dard, constitute a hostile environment in II. violation of Title VII. distinguished The experienced and dis- Maj. op. at 565. judge, Dowd, Jr., trict D. David whose might
While I agree with this judgment statement majority the has overturned to- the in principle, of rule assuming my day, recognized sister carefully in his written “concupiscent” means conduct opinion when she that all of a harassment female in conduct, refers to sexual” “overtly workplace, the the however offensive and ob- application rule, court’s of the explained jectionable, as is not actionable sex-based dis- neutral, into a them by “aggregating]” meaning of Title the within crimination conduct non-sex-based single group, the correctly observed Dowd Judge VII. conduct, and with the sex-based merges abuse the of the 18 incidents of pattern whole resulting the becomes suffered, three only have claims to plaintiff action- amounting to animus” “anti-female nature, and the of a sexual or four were Thus, major- the under sexual abuse. able with sex-based to do nothing had others law, formula, anti- a matter of ity’s recog- Judge Dowd at all. discrimination displaces sexual harass- attitude female “F- use of the constant nized that the recovery under the standard ment as keys and denial of shop, in the word” Title VII. doors, and breaks, blocking buggies course, in the majority is not desk, Of and plaintiffs articles to the gluing And, Workplace; motivated the 18 tiff because having types. ment, into 18 marks tiff are not acts throwing misanalyzing properly separating ment; her Treatment gories: a ed at a female come so gat[ing] ceived Dowd and unrelated abusive alleges amounted sex case has district The single group, related. deposition absent evidence into four common very logically grouped the fact thoroughly Directed majority nothing to do with sexual separate But the Inequities court’s simply “(1) a by an intent “couple purpose: By “aggregating]” of her [18] that the (2) (4) who *17 testimony, “disaggregated” Foul approach because majority’s Toward the incidents accuses Co-Workers; of sexual discrimination. incidents” to sexual abuse. disparate incidents into [of] Sexually-Related Mean sex, they did not be- case them into four majority very nicely that these Language boxes” to harass the remarks plaintiff Workplace the victim of sense, they Williams.” to Judge the conduct she criticism by “disaggre- analyzing and thus were at the manageable herself, in that were acts were Annoying (3) Dowd 18, most harass- target- Treat- Judge of the plain- plain- other cate- Per- Re- the im- place victim’s its ris, majority apparently meated ments them with tile plaintiff fined majority purports to concoct ment lated effect of ridicule, Meritor rather, handful general least concerned tion that is so severe severe an abusive abuse “accumulated sive and “severe and proscribe “anti-female create of discrimination der to What own, working insult the 510 U.S. Congress in which is directed at harassment, and it create what the “conditions with of acts of sexual does not working horseplay, suffered, and insult —one objectionable, are proscribes pervasive working pervasive” as to create majority refuses to environment, effect.” discriminatory has not these, plaintiff (1) sex-based, and and Harris. that Title VII does satisfy out females, while 12 or so instances of rudeness, rudeness, buffoonery, sex-based but as recognizes that environment of employment.” proscribed all work- Maj. op. at 563. to meet the test of thoroughly offen- majority calls an evidence the animus” at only S.Ct. 367. that alters pervasive or alleged, in or- plainly not so requirements intimidation, an inference the accumu- that harass- Instead, the that is insult, discrimina- so accept is that, a hos- (2) as to Har- aug- per- The and de- all; on so con- its thesis that “non-sexual advances law, it other by combining the with of where may illegally duct be sex-based satisfy require- the that does not evidence Maj. op. animus.” anti-female law, evinces wholly irrelevant the and is ments of if a female is the say, That is to abuse. to the of ridicule or target of three or acts four III. addition, nature, and, in insult of a sexual to the premise critical Another mistaken unrelated acts target is the other “totality of the majority’s thesis is that the that are sex annoyance circumstances,” as the frame of reference can persuasive One make a argument that assessing whether actionable sex dis- in a society civilized an employer an shown, crimination has been does not in- obligation provide a workplace environ- clude the nature and character of the ment, shop including factory, or in which workplace environment. In so saying, my respect for ordinary sensibilities of all colleagues simply are dead wrong. The men and especially women—is women— Supreme very Court has made it clear that assured, and behavior of the kind the workplace environment indeed is a plaintiff alleges occurred is not here toler- component totality of circumstances ated. But that is not what Congress has to be taken in into account assessing VII, decreed in Title and it not is what the claim of sexual harassment under Title Supreme Meritor, Hams, in Court VII: Oncale has declared to be the basis for an moreover, emphasized, We have award of damages. objective severity of harassment shop judged perspective
should be from floor is a rough and indelicate person in po- reasonable the plaintiffs finishing school sition, considering “all circum- manners not are the behavioral norm. stances.” ... In ... [all] harassment aWhen of ordinary female civility, sensi- cases, that inquiry requires con- bilities, morality walks into a careful work sideration the social context which milieu that may be tastelessly suffused particular behavior expe- occurs and is rudeness, with personal insensitivity, crude rienced target. professional its A behavior, and locker room language, she player’s football working environment is must do so with the understanding that severely abusive, not pervasively for Congress legislated has not against such example, if the coach him smacks on the behavior and such workplace environ- buttocks as he heads onto the field— ment. That say is for a moment even if the same behavior reason- would employer liability immune from ably experienced be as abusive for hostile work environment sex discrimi- (male female) secretary coach’s back nation occurring factory or shop at the office. simply because regu- environment is Servs., Oncale v. Inc., Sundowner Offshore larly laced crude with behavior that in- 998, 1003, 523 U.S. 140 cludes sexual abuse. It only that means (1998) added). L.Ed.2d (emphasis “culture,” customary it, or lack of in a This common sense idea previously particular workplace part is a of the totali- recognized in a sister circuit: ty of circumstances to be taken into ac- plaintiffs] [W]e must evaluate [the claim count in determining the nature whether of gender discrimination in the context and extent of the claimed harassment is so of a blue collar environment where “severe pervasive” that it has caused *18 language crude commonly by used workplace, is, such as it to become male and employees. Speech female permeated with discriminatory intimi- that might offensive or unacceptable be dation, ridicule, and insult “al- and has in a prep school faculty meeting, or on terfed] conditions of the victim’s em- the floor of Congress, is tolerated in ployment” place. Harris, in that 510 U.S. other work environments. 21, added). 114 (emphasis S.Ct. 367 Co., Gross v. Burggraf Constr. 53 F.3d Indeed, very legal mention of a stan- (10th 1531, 1538 Cir.1995). dard that inquires into the conditions of employment The presumes abusive and conduct of that the court will insulting which plaintiff complains, pervasiveness decide the including of in the particularly crude sexual innuendo context of ordinary she conditions described, has is indisputably offensive. relevant workplace.
572 omitted). (internal Of marks quotation
IV. course, implicitly concedes majority for women opportunity of Equality necessary reinvent finding fact in it to workplace spectrum the entire across in the work- of sexual harassment the law in right guaranteed a civil circumstances is Title of what with its view place consistent made enforceable the Constitution The few acts proscribe. ought VII op- includes VII. And through Title com- which Williams harassment of occupations in portunities for by augmented properly be plains may not have in women undertakings insult, rude- workplace of other instances may That well always been involved. nonsense, ness, having horseplay, and dedicated, competition for in the mean that sex, in order to do with her nothing workers, female experienced, and skilled harass- Title a case of VII sexual construct new, more have to employers will establish judg- summary to resist ment sufficient of be- rules female-sensitive sophisticated, artificial construct— majority's ment. unknown in were havior which heretofore in of a female harassment non-sexual envi- workplace and tumble many rough Title VII rise to workplace give can However, occupa- many ronments. if liability it evinces discrimination sex right- their now take women tions which rewrit- a radical “anti-female animus”—is time, they for the first places, perhaps ful sex discrimination of settled VII ing Title unwanted, find themselves victims may majority if what the And jurisprudence. even insult- inappropriate, ungallant, by vacated this court today is not has done But that does attention. ing sex-related banc, us. surely come to haunt it will en appellate courts federal not mean Congress to by have been commissioned civility upon the heightened level
force other, any workplace
blue collar —or sex redefining workplace that matter — broadly more than Con- far
discrimination VII, more Title has defined
gress Su- than the United States
expansively Meritor, interpreted it in has preme Court BROWN, III, Petitioner- H. James indeed, Hams, Oncale, more even Appellant/Cross-Appellee, defined it precedent our broadly than Homes, Inc., 104 F.3d Zaring in Black v. v. Cir.) v. 822, (6th (quoting Baskerville Warden, O’DEA, Eastern Ken Michael Co., 50 International F.3d Culligan Complex, Respon tucky Correctional — denied, (7th Cir.1995)), U.S. cert. dent-Appellee/Cross-Appellant. -, 139 L.Ed.2d 97-6355, Nos. 97-6425. (1997). Appeals, Court of United States V. Circuit. Sixth me, entirely clear to summary, it is 26, 1999. Argued Jan. court, that the hand-
it was to the district suf- ful of acts sex-based Aug. Decided Williams, while Marilyn offensive fered *19 not, workplace in the deplorable, were herself, she found to alter pervasive “sufficiently severe of [her] conditions working environment.” an abusive
create
Meritor, U.S.