Ocheltree v. Scollon ProductionsOcheltree v. Scollon Productions
Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part and reversed in part by published opinion. Judge MICHAEL wrote the opinion, in which Chief Judge WILKINS, Judge WILKINSON, Judge LUTTIG, Judge DIANA GRIBBON MOTZ, Judge TRAXLER, Judge KING, Judge GREGORY, and Judge SHEDD joined. Judge NIEMEYER wrote a separate opinion, concurring in the judgment. Judge WILLIAMS wrote a separate opinion, dissenting in part and concurring in the judgment in part, in which Judge WIDENER joined.
OPINION
MICHAEL, Circuit Judge:
A jury found that Lisa Ocheltree, a plaintiff suing under Title VII of the
I.
Scollon Productions makes costumes, including ones depicting university mascots and cartoon characters. The company has about fifty employees and is located in White Rock, South Carolina. J.A. 283. The only persons with formal management authority at the company are Bill Scollon, the president, and Ellery Locklear, the senior vice president. J.A. 157, 282, 288. The company‘s production facilities include a sewing room and what is called the production shop. The production shop itself is fairly small, with enough work tables to accommodate about a dozen employees, including the shop supervisor. J.A. 109-11, 211-12, 216, 287. Bill Scollon and Locklear have their offices near the production facilities. J.A. 216.
Ocheltree was employed at Scollon Productions for eighteen months, from February 1994 until August 1995. She worked in the production shop making shoes. Ocheltree was the only female employee in the shop, working alongside ten or eleven men. J.A. 103, 110. In the early stages of her employment, the atmosphere in the shop was “fun” and “friendly,” but this changed. During her first year there, coarse sexual talk and sexual antics by several of the men began to occur with increasing frequency. This misconduct worsened as time went on, especially after Ocheltree complained to the men and the shop supervisor, Harold Hirsch. J.A. 111-14, 199-200, 202-03. The details of the sexual talk and conduct that Ocheltree heard and saw during her tenure in the production shop are as follows.
On another occasion a male coworker came up to Ocheltree in the production shop and sang the following song to her “like he was in the opera“: “Come to me, oh, baby come to me, your breath smells like c[o]m[e] to me.” J.A. 114-15. Ocheltree immediately told the man that he was disgusting. Nevertheless, the other men in the production shop, including supervisor Hirsch, expressed their enjoyment of the incident with much laughter. Id. On still another occasion when Ocheltree was seated at her work station, some of her male coworkers were looking at a book that contained pictures of men with pierced genitalia. One coworker took the book, approached Ocheltree, and opened it to the centerfold photograph showing a man‘s crotch area. The scrotum was pierced with hoops, and there were chains running up to the top of the penis. The coworker, with his male colleagues looking on, said, “Lisa, what do you think about this?” Again, this generated laughter from the men in the shop. J.A. 117-18.
As time went on, Ocheltree‘s male coworkers subjected her to a daily stream of discussion and conduct that was sex based or sexist. J.A. 114, 120, 204, 214. First, the men in the production shop used explicit sexual insults to needle each other in front of Ocheltree. For example, “[g]uys would make hand gestures down at their private parts and tell other guys to suck it.” J.A. 113. Some of the men at times suggested that two of their number were involved in a homosexual relationship. The men engaging in this sort of talk “pick[ed] on” their subjects by discussing the details of anal sex, saying specifically that they “wonder[ed] who was on top and who took it up the ass.” J.A. 200. There were also comments that one employee was having sex with a dog. J.A. 229. Second, Ocheltree‘s male coworkers constantly discussed their sexual exploits with their wives and girlfriends in extremely graphic terms. The men talked every day about their sexual experiences of the night before, making comments about their female partners such as “she swallowed, she gave good head, [or] I fucked her all night long.” J.A. 118. One employee announced that his girlfriend “gave good head[,] that she likes to swallow, that she liked it from behind, [and] that she would do it anywhere with him.” J.A. 120. He added that she “could suck a golf [ball] through a garden hose.” Id. Another employee in the shop often “would speak of [his wife] sucking his dick and swallowing and letting it run down the side of her face and stuff.” J.A. 200. Finally, on one occasion, shop supervisor Hirsch said that he was interested in having sex with young boys and that he “enjoyed ... licking young boys[‘] dicks.” J.A. 119. Ocheltree was convinced that Hirsch and other men in the shop engaged in sexual talk and antics “in front of [her] because they enjoyed looking at [her] and seeing [her] reaction.” J.A. 119. Indeed, Hirsch frequently joined in the shoproom laughter that erupted at Ocheltree‘s expense. J.A. 115, 118. There were times when the sexual talk in the production shop got so far out of hand that Ocheltree would “turn red [and] would have to get up and leave [her] work area ... just to get away from the atmosphere.” J.A. 120.
Ocheltree believed that she was being subjected to sexual harassment in her workplace, and she made attempts to register complaints as the employee handbook prescribed. She complained repeatedly to Hirsch, the shop supervisor, who ignored the problem. J.A. 122. Ocheltree then attempted to register her concerns with Scollon and Locklear, but in Ocheltree‘s words, “[t]hey wouldn‘t give [her] the time of day.” J.A. 137. She went to Scollon‘s office several times and asked if he had a minute to talk with her. J.A. 122-23. In each instance Scollon told her that he did not have time and that she should “go see Mr. Locklear” or “go back to work.” J.A. 123-24. Scollon acknowledges that on one occasion when Ocheltree attempted to speak with him, he told her it was not an appropriate time. He admits that he turned her away because he believed that whatever she wanted to talk about was not important. J.A. 299. Locklear was likewise never available to hear Ocheltree‘s complaints. Once when Ocheltree went to Locklear‘s office, he was on the telephone; she put a note on his desk, saying: “Ellery, Need to talk to you, very important, Lisa.” J.A. 123. She underlined “very important.” Locklear indicated that he saw the note, but he never talked with her. Id. When Ocheltree left her work station because the sexual and sexist talk was getting out of hand, Hirsch would follow her to prevent her from speaking to Scollon or Locklear. J.A. 120, 123-24. For example, if she took refuge in the bathroom at these times, Hirsch would often be waiting when she emerged, telling her to go back to work. Ocheltree lost track of the number of times she tried to talk with Locklear, only to have Hirsch order her back to work. J.A. 123-24. Ocheltree summed it up this way: “[Hirsch] knew [that] I was going to go and tell [Locklear or Scollon about the men‘s behavior] because he would not go forward with it. He would tell me to get back to work, that if I had something ... to say to Bill or Ellery they would come to me and talk to me [and] that he would relay the message.” Id.
After Ocheltree had no success in voicing her complaints through regular channels, she decided to speak up at a safety meeting for the production shop. She knew that a supervisor would be taking minutes, and she believed the minutes would be passed along to Scollon and Locklear. Ocheltree “addressed everyone,” saying that “the sexual conduct, pictures, the gestures, the imitating of sex to mannequins and all that” should stop. J.A. 144-45, 203. The offensive conduct ceased for two or three hours, but then resumed with the same intensity. J.A. 203-04.
Her treatment at Scollon Productions left Ocheltree “embarrassed, humiliated, angered,” and “totally down all the time.” J.A. 127. She found it hard to be around groups of people and, as a result, stopped attending functions and activities that her two children were involved in. She has been on and off antidepressants. J.A. 125-26.
In April 1996 Ocheltree filed a complaint against Scollon Productions in the United States District Court for the District of South Carolina, asserting sex discrimination and retaliation claims under Title VII of the
Scollon Productions argues that the district court erred in denying its Rule 50 motion for judgment as a matter of law because “there is no legally sufficient evidentiary basis” for the jury‘s verdict. See
III.
Title VII of the
A.
The second element of the test requires proof that the offending conduct was based on the plaintiff‘s sex. This element comes straight from Title VII‘s “discriminat[ion]... because of ... sex” requirement.
The disrespectful and degrading song that a coworker sang to Ocheltree in front of the men in the shop — “Come to me, oh, baby come to me, your breath smells like c[o]m[e] to me” — was by its words aimed at a woman. J.A. 115. On the occasion when some of Ocheltree‘s male coworkers were looking at the book with pictures of men with pierced genitalia, one of the coworkers decided to take advantage of Ocheltree‘s presence. With his male colleagues watching, the man took the book over to Ocheltree‘s work station, held up the centerfold photograph (showing a hoop-pierced scrotum and a chained penis) for her to see, and said, “Lisa, what do you think about this?” J.A. 117-18. No man in the shop was subjected to this same embarrassment, and no man there was called upon to offer a reaction to the photograph while the entire shop looked on. The sexual activity with the mannequin (from simulated oral sex to fondling) occurred repeatedly. Ocheltree‘s male coworkers did something sexual to the mannequin almost every time she was nearby. All of this conduct provoked much laughter from the men in the shop — laughter at Ocheltree‘s expense. J.A. 115-17, 200-03. Indeed, a jury could reasonably find that the men engaged in this conduct largely because they enjoyed watching and laughing at the reactions of the only woman in the shop.
The production shop talk that portrayed women as sexually subordinate to men was also calculated to disturb Ocheltree, a jury could reasonably find. We refer here to the almost daily accounts from some of the men who described their exploits with their wives and girlfriends in demeaning terms such as “she gave good head,” “she likes to swallow,” she “let[] [the semen] run down the side of her face,” and “she like[s] it from behind.” J.A. 120, 200. This kind of talk, as well as the sexual antics, got out of hand after Ocheltree‘s arrival in the production shop; it even escalated after she complained about it. It is true, as Scollon Productions points out, that at least a couple of the men were offended by the sexual talk and antics. There is no evidence, however, that this outrageous conduct was aimed at getting an embarrassed reaction from these men or that it was calculated to generate laughter at the expense of any man. No man was driven from the room because of the conduct, as was Ocheltree on occasion.
To sum up on this point, we conclude that a reasonable jury could find that Ocheltree was the individual target of harassment because of her sex. Moreover, a jury could find that the men in the production shop “harassed [Ocheltree] in such sex-specific and derogatory terms ... as to make it clear that [they were] motivated by general hostility to the presence of [a] wom[a]n in the [ir] workplace.” Oncale, 523 U.S. at 80, 118 S.Ct. 998. In all events, a reasonable jury could find, as did the jury in this case, that Ocheltree was harassed in her workplace because of her sex.
The third requirement for a Title VII claim is proof that the harassment is “sufficiently severe or pervasive to alter the conditions of [the victim‘s] employment and create an abusive working environment.” Meritor Savs. Bank, 477 U.S. at 67, 106 S.Ct. 2399 (internal quotation marks omitted; alteration in original). The “severe or pervasive” element has both subjective and objective components. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. Scollon Productions does not challenge the jury‘s finding that the harassment was “severe or pervasive to [Ocheltree] personally.” Rather, the company argues that the evidence was insufficient to support the jury‘s finding that the harassment would have been “severe or pervasive to a reasonable person in [Ocheltree‘s] position.” In deciding whether a jury could find that a work environment was objectively abusive, that is, abusive to “a reasonable person in the plaintiff‘s position,” Oncale, 523 U.S. at 82, 118 S.Ct. 998, we consider all of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance.” Harris, 510 U.S. at 23, 114 S.Ct. 367. This standard is designed to “filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.‘” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Barbara Lindemann & David Kadue, Sexual Harassment in Employment Law 175 (1992)). At the same time, the standard “protect[s] working women from the kind of male attentions that can make the workplace hellish for women.” Baskerville v. Culligan Int‘l Co., 50 F.3d 428, 430 (7th Cir.1995). See also Anderson, 281 F.3d at 459 (quoting Baskerville).
Here, a reasonable jury could find that, taken together, the various mannequin incidents, the vulgar song and picture, and the graphic descriptions of sexual activity (especially oral sex) that consistently painted women in a sexually subservient and demeaning light were sufficiently severe or pervasive to alter the conditions of Ocheltree‘s employment and to create an abusive work environment. After a time, Ocheltree was subjected every day to some variety of this offensive conduct, which was humiliating to her personally and to women in general. The harassment became so offensive at times that it drove Ocheltree from the room. It surely made it more difficult for her to do her job. A rational jury could find that a reasonable person in Ocheltree‘s situation would regard the work environment at Scollon Productions as abusive.
C.
A Title VII plaintiff, for the fourth element of her claim, must prove that the harassment was imputable on some basis to her employer. In a case where an employee is sexually harassed by a coworker, the employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it. Spicer, 66 F.3d at 710; see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (noting that “[n]egligence sets a minimum standard for employer liability under Title VII“). In a case of harassment by a supervisor “with immediate (or successively higher) authority over the employee,” an employer may be found vicariously liable under the standards established in Burlington Industries, Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257, and Faragher v. City of Boca Raton, 524 U.S. at 807-08, 118 S.Ct. 2275. Both the negligence and the vicarious liability theories were submitted to the jury in the special interrogatories, and the jury found in Ocheltree‘s favor on both theories. We limit our discussion to the negligence (or constructive knowledge) theory because the evidence is sufficient to support the jury‘s finding that Scollon Productions should have known that Ocheltree was being harassed by her coworkers.
Scollon Productions claims that it has adequate complaint procedures that are set out in its sexual harassment policy. To begin with, it is debatable whether the company actually has a sexual harassment policy. No company document mentions sexual harassment, and there is no evidence that the company conducted any training to prevent sexual harassment. The company claims, however, that its “sexual harassment policy” is contained in two sections of its employee handbook. One section, entitled “Talking,” says that “verbal abuse” of coworkers and supervisors is “not acceptable” and is “grounds for termination.” J.A. 352. According to Bill Scollon, this is the company‘s prohibition of sexual harassment. J.A. 299-300. As to the channels for reporting harassment, the company points to another section of its handbook, entitled “Open Door Policy,” J.A. 355, which states: “Anyone having a complaint or problem should first try to resolve it with their immediate supervisor. Ellery [Locklear] or Bill [Scollon] are usually available throughout the day to help resolve complaints or problems not resolved by supervisors.” If this amounts to a sexual harassment policy, a jury could reasonably find that it fails to provide reasonable avenues of complaint.
The first problem with Scollon Productions’ complaint procedure is that, by the company‘s own admission, it fails to place any duty on supervisors to report incidents of sexual harassment to their superiors. Bill Scollon acknowledges that a supervisor, such as shop supervisor Hirsch, has no duty under the open door policy to report sexual harassment complaints to either of the two persons with full management authority, Scollon himself or Ellery Locklear. J.A. 311. If a supervisor cannot or does not adequately resolve an employee‘s complaint, the employee has the responsibility of complaining to the company president or vice president. This approach seems ill designed to ensure that upper management learns of harassment. The victim must muster the courage to make a second complaint, and she may be more reluctant to register that complaint with a top company official. In any case, in deciding whether a company has reasonable complaint procedures, a jury may give negative weight to the fact that a scheme does not require a supervisor, with whom complaints of sexual harassment must be lodged in the first instance, to forward unresolved complaints to higher authority. See Wilson, 164 F.3d at 541-42.
In sum, a reasonable jury could make the basic finding that Scollon Productions did not provide Ocheltree with reasonable avenues for voicing her sexual harassment complaints. In other words, Scollon Productions “did not exercise reasonable care in setting out the channels by which it could receive reports [of sexual harassment], and it is therefore in no position to rely on those inadequate channels to claim that it did not receive notice.” Wilson, 164 F.3d at 542. Scollon Productions should have known about the harassment, as the jury found, and the company may be charged with knowledge because it did not provide reasonable avenues of complaint. The jury properly imputed the coworker harassment to Scollon Productions under the negligence (or constructive knowledge) theory.
IV.
Scollon Productions also argues that there is no evidentiary basis for a reasonable jury to award punitive damages in this case. A Title VII plaintiff is entitled to punitive damages if her employer engaged in intentional discrimination “with malice or with reckless indifference to [the plaintiff‘s] federally protected rights.”
V.
Because there is a legally sufficient evidentiary basis for a reasonable jury to find that Ocheltree was the victim of sex-based employment discrimination, we conclude that the district court correctly denied Scollon Productions’ motion for judgment as a matter of law on her basic Title VII claim. The evidence, however, was not legally sufficient for a jury to find that Scollon Productions had the knowledge required to be liable for punitive damages. Accordingly, we affirm the judgment for the amount awarded in compensatory damages, and we reverse the judgment for the amount awarded in punitive damages.
AFFIRMED IN PART AND REVERSED IN PART
This case presents the fortunately unusual circumstances in which the conditions in the entire workplace were coarse — indeed humanly degrading — and about which both male employees and Lisa Ocheltree appropriately complained. Because the basis of this workplace conduct for everyone centered on dirty jokes and allusions to sexual play and perversion, the majority has in my judgment taken it for discrimination by reason of sex and thus blurred the relevant issue. The majority reasons that this general condition of sexually-oriented baseness subjected Ocheltree to a hostile work environment that violated Title VII and the Meritor Savings Bank line of cases. See ante at 331-332. While the majority does point out that some of the workplace antics were focused more directly on Ocheltree than others to obtain her reaction as a woman, the number of such incidents appears to be limited to three. See ante at 332-333. The remainder of the conduct relied on by the majority must be characterized as general work conditions that both males and Ocheltree experienced. The majority fails to explain how these generally coarse conditions discriminated against one person or against one sex.
The dissenting opinion has, in my judgment, advanced the proper analysis of Title VII, focusing on discrimination and pointing out that the generally ugly atmosphere, albeit normally unacceptable, did not violate Title VII because these general conditions did not discriminate. See post at 338. For these reasons noted by the dissent, I cannot agree with the majority‘s analysis.
I am still left, however, with the existence of the three incidents of which both the majority and the dissenting opinion agree were focused on Ocheltree because she was a woman. These three incidents taken in isolation, without any offensive background conduct, most likely were insufficiently pervasive to alter the terms and conditions of Ocheltree‘s workplace. See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754 (4th Cir.1996) (holding that a few sexually discriminatory incidents “spread over seven years with significant time gaps between incidents” was not sufficiently severe or pervasive to be actionable). But the presence of the background conduct based on sexual perversion leads me to believe that we cannot take the three incidents in isolation. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (“The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed“). The discriminatory impact of the three incidents in my judgment was heightened by the force of the sexually-based background conduct, and therefore, on reflection, I believe that a jury could legally find that Ocheltree was the victim of unlawful discrimination.
Thus, while I firmly concur in the dissenting opinion‘s interpretation of Title VII, my review of the facts in the peculiar circumstances of this case leads me to conclude that the jury‘s verdict on liability should be affirmed. For this reason, I concur only in the judgment.
With respect to punitive damages, I agree that they must be vacated.
WILLIAMS, Circuit Judge, dissenting in part and concurring in the judgment in part:
I.
A court should render judgment as a matter of law when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on thatissue.”
II.
To determine whether there is a legally sufficient evidentiary basis to sustain the jury‘s verdict, I begin with the text of Title VII. Title VII makes it an “unlawful employment practice for an employer ... to fail or refuse to hire or to discharge ... or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s ... sex.”
Notably, “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ’discriminat[ion]... because of ... sex.‘” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 676 (7th Cir.1993) (noting that there would be no cause of action for race discrimination under Title VII for a “daily routine of race-neutral verbal abuse“). Thus, a pervasively hostile or abusive atmosphere does not create a cause of action for sexual harassment under Title VII unless the plaintiff is able to show discriminatory treatment because of sex. Meritor Sav. Bank, 477 U.S. at 66, 106 S.Ct. 2399 (“[C]ourts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.“). “[W]orkplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations.” Oncale, 523 U.S. at 80, 118 S.Ct. 998. “‘The critical issue, Title VII‘s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.‘” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring)). Stated another way, “would the complaining employee have suffered the harassment had he or she been of a different gender?” Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 750 (4th Cir.1996) (quoting Bundy v. Jackson, 641 F.2d 934, 942 n. 7 (D.C.Cir.1981)).
Based upon the foregoing principles, this court has consistently and correctly recognized that a finding of “discriminat[ion]... because of ... sex” depends not simply on identifying some quantum of harassing behavior to which an individual is exposed. Rather, the statutory language itself requires a showing that the harassing behavior constituted disparate treatment and that this disparate treatment was motivated by the plaintiff‘s gender. See Lack v. Wal-Mart, Inc., 240 F.3d 255, 260 (4th Cir.2001) (“This emphasis on discrimination as sex-differential treatment resonates throughout ... Oncale.” (emphasis added)); id. at 261 (asking whether offensive comments were “animated by Bragg‘s hostility to Lack as a man“). In other words, there must be evidence that supports an inference that the harassing conduct is both “discriminat[ion]” and is “because of ... sex.” See Oncale, 523 U.S. at 80-81, 118 S.Ct. 998; Smith v. First Union Nat‘l Bank, 202 F.3d 234, 242 (4th Cir.2000) (“An employee is harassed or otherwise discriminated against ‘because of’ his or her gender if,‘but for’ the employee‘s gender, he or she would not have been the victim of the discrimination.“) (citing Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996)).
At bottom, the majority simply fails to acknowledge the uncontested evidence showing that the vulgar talk and behavior was experienced by, and equally offensive to, all of the production shop workers, irrespective of gender. In light of this evidence, Ocheltree is unable to establish that she was subject to any meaningful difference in treatment when compared to her co-workers. Lack, 240 F.3d at 262 (“Lack [a male plaintiff] fails to come to grips with the fact that female employees (including his original co-plaintiff Susan Willis) also lodged similar complaints regarding Bragg‘s behavior. This fact undercuts Lack‘s claim to a substantial extent.“); id. (“In its totality, the evidence compels the conclusion that Bragg was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike.“); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 965 (8th Cir.1999) (“Appellant admitted that Schoenfeld used profanity toward both male and female employees, and she believed that Lonnie would have reacted the same way had a male co-worker laughed at his mistakes.“); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982) (holding that where a supervisor makes sexual overtures to employees of both genders, or where the conduct is equally offensive to male and female workers, the conduct may be actionable under state law, but it is not actionable as harassment under Title VII because men and women are accorded like treatment). Thus, the majority of the vulgar talk and antics trumpeted by the majority did not constitute discrimination.
Moreover, with regard to the second part of this inquiry, there is no evidence that this non-discriminatory vulgar talk and behavior occurred “because of” Ocheltree‘s sex. In fact, the uncontested evidence before the jury conclusively establishes otherwise. Zouras, who worked at Scollon Productions prior to Ocheltree becoming an employee, testified that “the same kind of conversations went on before [Ocheltree] came to work [at Scollon Productions] as after she arrived” and that it would be “fair to say there was no change in the atmosphere at the shop when [Ocheltree] arrived.” (J.A. at 241-42.) Given that the behavior occurred prior to Ocheltree‘s employment with Scollon Productions, it follows a fortiori that the behavior could not have been motivated by her sex.5
To be sure, sexually explicit conversations could be so sex-specific and derogatory as to permit an inference of gender-related hostility. For example, if the conversations included unambiguous gender-related epithets, it would be permissible to infer that the vulgar behavior was intended to be discriminatory and was animated by hostility toward women. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.2001). No such conversations, however, were alleged here. Apart from the sexual content of the conversations, there is no nexus whatsoever between the conduct and Ocheltree‘s gender. To conclude that these conversations portray women in derogatory terms simply because they depict women engaging in consensual heterosexual sex would be, I believe, to misapply the Supreme Court‘s teaching on the relationship between sexual conversations and sexual harassment and to misunderstand modern societal views regarding women‘s sexuality. “[W]hile there are still people in this country, male as well as female, who are deeply offended by dirty words, employers are not under a legal duty enforceable by suits under Title VII to purify the language of the workplace.” Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1010 (7th Cir.1994) (citing Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir.1986)).
B.
The third requirement for a Title VII claim is proof that the discrimination is “sufficiently severe or pervasive to alter the conditions of [the victim‘s] employment and create an abusive working environment.” Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. 2399 (internal quotation marks omitted; alteration in original). “Not all sexual harassment that is directed at an individual because of his or her sex is actionable.” Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772-73 (4th Cir.1997) (citation omitted). “The ‘occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers’ would be neither pervasive nor offensive enough to be actionable. The workplace that is actionable is the one that is ‘hellish.‘” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.1997) (quoting Baskerville v. Culligan Int‘l Co., 50 F.3d 428, 430 (7th Cir. 1995)).
The behavior here falls well short of that mark. As discussed above, the vast majority of the vulgar talk and behavior that occurred at Scollon Productions does not constitute “discriminat[ion] ... because of... sex.” Of course, it is inappropriate to evaluate the severity or pervasiveness of non-discriminatory conduct for purposes of imposing liability under Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275 (“[W]hether an environment is sufficiently hostile or abusive is determined by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance.” (emphasis added and internal quotation marks omitted)); see also Hartsell, 123 F.3d at 772 (isolating gender-motivated discriminatory conduct and then evaluating whether such conduct was severe or pervasive). Even assuming that the few incidents that could be viewed as having been directed at Ocheltree during the year and a half that she was employed at Scollon Productions each amounted to gender-motivated discrimination, I have no difficulty concluding that these incidents were not severe or pervasive for purposes of Title VII as a matter of law. See, e.g., Hartsell, 123 F.3d at 773 (“But the claims propounded by Hartsell— even assuming them all to be true—are so trivial, so isolated, and so far from the paradigmatic case of sexual harassment, that summary judgment was clearly appropriate.“); Hopkins, 77 F.3d at 754 (listing cases involving infrequent, isolated incidents in which we have held that harassment was not severe or pervasive as a matter of law). Because Ocheltree has failed to introduce sufficient evidence establishing the third element of her hostile work environment claim, the claim is not cognizable as a matter of law.7
Although it is true that determining the severity or pervasiveness of the gender-motivated discrimination requires careful consideration of the social context in which particular behavior occurs, Oncale, 523 U.S. at 81-82, 118 S.Ct. 998; Meritor Sav. Bank, 477 U.S. at 69, 106 S.Ct. 2399, this contextual analysis weakens — rather than bolsters — Ocheltree‘s sexual harrassment claim. For example, it is not severely or pervasively abusive for a coach to smack a professional football player on the buttocks as he heads on the field, “even if the same behavior would reasonably be experienced as abusive by the coach‘s secretary... back at the office.” Oncale, 523 U.S. at 81, 118 S.Ct. 998. Similarly, the three isolated incidents of gender-motivated discrimination were not severe or pervasive, considering the coarse social context of the production shop where the background environment was and had been generally crude and vulgar, but non-discriminatory. See Gross v. Burggraf Construction Co., 53 F.3d 1531, 1537-39 (10th Cir.1995) (evaluating claim of gender discrimination in light of the profanity and vulgarity prevalent in “the real world of construction work“).
A contrary conclusion would eviscerate the purpose underlying the severe or pervasive requirement by allowing sporadic instances of gender-motivated discrimination to give rise to Title VII liability. See Faragher, 524 U.S. at 788, 118 S.Ct. 2275. If non-discriminatory background conduct can somehow transform isolated incidents of discrimination into a severe and pervasive environment, its practical effect mirrors that of the majority — to avoid Title VII liability, employers will be forced to alter the workplace environment by eliminating the background, non-discriminatory conduct. When a non-discriminatory workplace environment is required to change because of the introduction of a female employee, Title VII has become a code of civility that requires that women be afforded preferential treatment beyond non-discrimination. I cannot agree that Title VII permits or sanctions such a result.
III.
Finding that there is not a legally sufficient evidentiary basis to support the jury‘s verdict, I respectfully dissent from my colleagues’ decision to affirm the compensatory damages award. I concur in the majority‘s judgment that the punitive damages award must be reversed.