No. 08-6376 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________________________________________________ LOUVENIA ARMSTRONG, HENRY BEASLEY, LARSEN CASH, TIM SWADER, & BETTY TALLEY, Plaintiffs/Appellants, v. WHIRLPOOL CORPORATION, Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Middle District of Tennessee at Nashville No. 3:03-cv-01250 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS/APPELLANTS AND IN FAVOR OF REVERSAL _______________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., Rm. 5SW18J Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ALL OF THE PLAINTIFFS ADDUCED EVIDENCE SUFFICIENT TO PERMIT A REASONABLE JURY TO CONCLUDE THAT THEY WERE SUBJECTED TO A SEVERE OR PERVASIVE RACIALLY HOSTILE WORK ENVIRONMENT WITHIN THE MEANING OF TITLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Abeita v. Transam. Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) . . . . . . 29 Allen v. Mich. Dep't of Corrs., 165 F.3d 405 (6th Cir. 1999) . . . . . . 28 Bailey v. USF Holland, Inc., 526 F.3d 880 (6th Cir. 2008) . . . . . . 25, 28 Barrett v. Whirlpool Corp., No. 08-5307, slip op. (6th Cir. Feb. 23, 2009). 24 Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991) . . . . . . . . 24 Dickerson v. N.J. Dep't of Human Serv., 767 F. Supp. 605 (D.N.J. 1991) . . 24 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . 13 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . 13, 20, 21 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008) . . . . . .passim Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) . . . . . . . . . passim McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) . . . . . . 23, 24 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . .27 NLRB v. Foundry Div., Alcon Indus., Inc., 260 F.3d 631 (6th Cir. 2001) . 23-24 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . 13 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) . . . . . . . . . . . . 23 Reeves v. C.H. Robinson Worldwide, 525 F.3d 1139 (11th Cir. 2008) . . . . . 23 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001) . . . . . . . . 24 Tademy v. Union Pac. R.R., 520 F.3d 1149 (10th Cir. 2008) . . . . . . . . . 25 Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982) . . . . . . . . . 23 Williams v. Ford Motor Co., 187 F.3d 553 (6th Cir. 1999) . . . . . . . 14, 21 STATUTES & RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq . . . 1 Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 29(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 31 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . 31 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . . . . . . . 31 OTHER AUTHORITIES Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15 (2006), http://www.eeoc.gov/policy/docs/race-color.html . . . . . . . . 22, 27 EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915- 050, 2 EEOC Compliance Manual (1990), http://www.eeoc.gov/policy/docs/currentissues.html . . . . . . . . . . . . 27 The Mammy Caricature, Ferris State Univ., Jim Crow Museum of Racist Memorabilia, http://www.ferris.edu/jimcrow/mammies/ (last visited Feb. 20, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents an important issue concerning the proper analysis of when an employee has been subjected to an actionable hostile work environment under Title VII. In this case, the district court ruled that virtually all of the explicitly racial slurs, graffiti, and threats to which the plaintiffs were subjected during the course of their employment were insufficiently severe or pervasive to constitute an actionable hostile work environment. In so ruling, the district court misapplied the governing precedent of this Court and effectively created a new standard for a racial hostile work environment that diverges significantly from the precedent of this and other courts. Because resolution of this issue will affect the EEOC's enforcement of Title VII, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF ISSUE<1> Whether all of the plaintiffs adduced evidence sufficient to permit a reasonable jury to find that they were subjected to a severe or pervasive racially hostile work environment within the meaning of Title VII. STATEMENT OF THE CASE A. Statement of the Facts Viewed in the light most favorable to the plaintiffs, the nonmoving parties on summary judgment, the record reveals the following facts. Louvenia Armstrong, Henry Beasley, Larsen Cash, Tim Swader, and Betty Talley are African-Americans who worked for several decades between the 1980s and 2006- 08 at the Whirlpool Corporation's plant in LaVergne, Tennessee. All five plaintiffs testified that, during the course of their employment at Whirlpool, they personally experienced and heard of numerous instances of racial epithets and stereotypes, racist graffiti, hostile treatment, and, in some instances, racial threats. R.242-2-4 (Third Amended Complaint ("3AC")).<2> Many, but by no means all, of the alleged racist incidents in this case involved an employee named Dale Travis, who worked at the LaVergne facility and served as a union shop steward between 1990 and 2003, when he was ultimately terminated for excessive absenteeism. R.401-Exh.27 (Travis Separation Notice). Armstrong testified that Travis "curs[ed] and talk[ed] about blacks and jok[ed]. And we had to listen to it, and it was very aggravating." R.429-61 (Armstrong dep.). She testified that Travis used racial slurs "all day long," "every day," and that it was an "ongoing thing." Id.-61,64. Armstrong and Talley heard Travis use the slurs "nigger" and "uppity nigger," and Armstrong heard Travis say that "folks ought to stay with their own kind." R.429-127-28,157 (Armstrong dep.); R.431-143 (Talley dep.). Talley testified that Dale Travis would call Roy Ruth, a white coworker and friend of hers, "a 'N' lover, and he didn't care who heard him." R.431-30 (Talley dep.). Talley, Beasley, and Swader all testified that they had personally heard Travis say, around Martin Luther King Day, that "we needed a James Earl Ray Day." Id.; R.432-48 (Swader dep.); R.427-160 (Beasley dep.). Talley related that after she complained to her supervisor about Travis's language, Travis "just started cursing Roy [Ruth] out then. And I think that was because he knew me and Roy talked, and Roy was a decent guy." R.431-31 (Talley dep.). Talley testified that Travis called Azylane Johnson, who "worked pretty much beside Dale," "everything but Azylane," including "black bitch," but "nobody did anything." Id.-93,126. Talley also testified that if a white person "talked to me [or Azylane] every day, you were a nigger lover. So he harassed the whites for talking to us." Id.-93-94. Beasley testified to Travis being "notorious" for saying things that were "explicit, racist, and hostile and threatening towards blacks." R.427-120 (Beasley dep.). Talley testified that Johnson told her that Travis regularly cursed at Beasley and "call[ed] him a yellow nigger, redhead nigger, [who] wanted to be white." Id.- 95. Similarly, the plaintiffs' testimony established that Travis called various African-American men "white boy," "white - white boys or something like that," and that he called Sonny Beasley "white boy" "on a daily basis." R.429-62 (Armstrong dep.); R.428-253 (Cash dep.); R.427-164 (Beasley dep.). Talley also testified she heard Travis call Ron Spivey "you black MF," that she heard Travis say "may the Klan be with you," and that he told a black employee named Tim to "stay with [his] own kind." R.431-98,144 (Talley dep.). She also related that "Dale used to give what he called [] the Confederate flag sign," which involved "lifting his left fist" and his left arm over his head. Id.-123. Swader testified that, around the holidays, Travis would make a point of singing the song "I'm Dreaming of a White Christmas," "around me, black people, talking about that's the best song he ever heard." R.432-48 (Swader dep.). Swader also testified that he heard Travis say that "that old nigger day is coming up," and that he saw Travis "w[ear] his rebel flags" on the job. Id.-51,52. Swader also recalled that he heard Travis discussing NASCAR racing with a group of white friends and saying that "this is one sport that them niggers aren't going to overcome or be better at." Id.-51-52. Cash also testified about an incident where a white female employee told a black female employee that "Dale Travis had said ... white people had better watch out, there's a bunch of niggers taking over," and both women reported the incident to a supervisor. R.428-111 (Cash dep.). As Beasley put it, "Dale said something racially offensive any time, almost, he opened his mouth." R.427-169 (Beasley dep.). The plaintiffs testified that they complained to various supervisors and managers about Travis, but it did no good. Armstrong testified that she complained about Travis "two or three times a week." R.429-65 (Armstrong dep.). She further testified that, when she complained to supervisors Steve Tidwell and Bill Westberry about Travis's behavior, they asked him to repeat what he had said, "[a]nd Dale repeated it, and they sat there and laughed; they joked about it. They thought it was real funny. And they did nothing about it." Id.-61-62. Talley testified that she saw managers Jerry Kennedy and Paul Hutchins "laughing and talking" with Travis over his jokes. R.431-39 (Talley dep.). Beasley also testified that Kennedy, as a manager, "was over the supervisor where ... they pretty much laughed at jokes of discrimination, race, and things like that.... They thought it was funny. They didn't think it was anything." R.427-150 (Beasley dep.). Swader also recounted an incident in 2002-03 in which Travis left a message on the answering machine of the husband of Tina Pope, a white female coworker with whom Swader was friendly. R.432-30,36-37 (Swader dep.); R.407-Exh.8- 209-11 (Gamauf dep.). In the message, Travis told Pope's husband that somebody had seen "Tina and that nigger" together and asked him, "[a]re you going to let that fucking bitch get away with that? She is fucking that nigger." R.357-Exh.6-1 (Swader note). Swader testified that he complained to Kurt Gamauf in HR about the incident, and sometime thereafter, he was on his way to work, crossing the parking lot, when "Dale rides up in his car. He hollers out, ... sissy motherfucker to me.... You went and told, you sissy motherfucker." R.432-32,38-39 (Swader dep.). Swader testified that there was a subsequent incident where Swader was getting off work and passed Travis in the hallway, and Travis "gave [Swader] that ... old look.... [T]rying to be intimidating, more or less. And I - in reading the lips, motherfucker again[.]" Id.-40. The plaintiffs also testified about many other racist incidents at Whirlpool not involving Travis. Armstrong testified that there was a period at the plant when "the whites was wearing ... rebel flags, and different things on their clothing[.] And one fellow even had a [confederate] flag on his tow motor." R.429-89 (Armstrong dep.). Armstrong also remembered a "young man" at a team meeting making the comment "May the Klan be with you," "call[ing] black people lazy," and saying "that he was going to tell his KKK buddies about ... us." Id.-159. She also recounted that Roger Conners, a white employee, called her "gal" every time he saw her, a term that she viewed as racially derogatory because "that's one of the names that ... people [] call slave people. Gal and [men are] boys." Id.-155. Talley testified that "Billy was called a nigger lover because he's friends with ... Larsen [Cash]. Roy was called a nigger lover because Roy likes everybody." R.431-128 (Talley dep.). She testified that Robert Quiggle "talked about any race that wasn't white"; specifically, "[t]he fact that [O.J. Simpson] was black and his wife was white ... was like a sore spot with him." Id.-128,147-49. She also testified that she had heard that "Peggy LeGrange and Terry Lackey talked about niggers being lazy and [] looking for a free ride," and that "Jimmy," "Keith," and "Richard" said that "blacks are lazy and they need to be shipped back to Africa." Id.-129. Finally, Talley testified that there was a white male employee at Whirlpool who "has a tendency to call black ... [women] Ma," including Talley, and that he "doesn't call any white women Ma." Id.-125-26. Swader testified that Travis's friend Willie "had a problem" with him because "too many white girls like me." R.432-50 (Swader dep.). He also testified that he had heard Willie say that "[n]iggers always think they got it made" and that "white people are the minority now," id.-80; that Lisa Speck said that "black people, more or less, are lazy," id.-51; and that Kevin Campbell and individuals named Charles and/or Curtis "said that ... they don't like to see black people mix with white people." Id.-78. Beasley testified that, one time when he was in a bathroom stall, a group of white employees came into the bathroom "laughing and talking about the black guy that got drugged [sic] behind a truck in Texas. And they [were] ... saying he probably deserved it." R.427-157 (Beasley dep.). Beasley also testified that he heard racial jokes about "Rodney King, the O.J. Simpson case ... [and] James Earl Ray Day." Id.-158. He also recalled that a white employee, Margaret Goins, told him that "blacks didn't like to work. They liked to file lawsuit[s]," id.-170, and another incident when his white supervisor, Steve Knight, told him a joke about a "nigger." Id.-171. Cash testified that Randall Kidwell "constantly call[ed] black men boys," and that Terry Lackey called "everybody black that he comes in contact with" "boys and everything else." R.428-129,282 (Cash dep.). Cash also testified that he heard that Joan Carney "called [an] African-American employee a sand head or rag head," and that group leader Mark Watwood "call[ed] African-American women niggers" and "rubb[ed] all up on them." Id.-158,160. He testified that he heard that Watwood called several African-American female employees, including Ms. Hicks and Beverly Hayes, niggers, and that "[h]e said Dale does it, why can't I call you one?" Id.-161. There were also incidents involving threats of racial violence and, in at least one instance, actual violence during the plaintiffs' tenure at Whirlpool. Both Beasley and Swader testified that Travis's friend Willie "beat up" Carlotta Freeman, a black employee, on the line after an "ongoing situation" between the two of them, where Freeman had "complained over and over again and nothing was ever done." R.427-111-12 (Beasley dep.); R.432-50 (Swader dep.). Swader testified that Willie also threatened to kill him outside the plant. R.432-80 (Swader dep.). Both Cash and Armstrong also testified about an incident when Charlie Fisher, who was white, was said to have thrown away a cake that a black employee had brought in; according to Cash, "I had heard that ... he throwed it in the trash, said he didn't want no cake no nigger had made." R.429-125-26 (Armstrong dep.); R.428-134 (Cash dep.). Cash and Beasley also witnessed an incident in 2003 or 2004 when, according to Cash, "someone ... used the bathroom on a black lady's tow motor, and we're not talking about urine." R.428-254 (Cash dep.); R.427-84- 85 (Beasley dep.). Cash testified that "[e]verybody went down there to see it, and then the supervisor grabbed some paper or something to scrape it up off the tow motor. It wasn't animal." Id.-255. Several of the plaintiffs also testified about racist graffiti in the plant. Swader testified that he saw racist graffiti in the bathrooms, including "KKK everywhere," "go home sand niggers," "Jesus suffered, so the niggers must suffer too, or ... blacks must suffer, too," and "white boys need to start ... fucking your bitches, because those niggers are." R.432-69-71 (Swader dep.). Beasley recounted that he had photographed racist graffiti, including "KKK," from the bathroom walls. R.427-57-58,60 (Beasley dep.). The photos depict graffiti including a swastika and the words "fuck you," "nigger," and "KKK." R.401- Exh.29 (e-mails attaching photos). Beasley testified that this type of graffiti was in stalls "all over the plant," and that "the bathroom was full of junk. It always has been." R.427-59,66 (Beasley dep.). According to Beasley, "it was over and over again, year after year. And the graffiti stayed in the bathroom - if they ever painted over any - which I think they did maybe once or twice, it came right back, and basically, you know, that was it." Id.-291. Cash recalled graffiti about "rag heads, sand niggers, wish all you niggers would go back, ... something like we made a mistake ... bringing you over here. There's a lot of different stuff that's been on the wall over the [] 19 years that I've been there." R.428-228 (Cash dep.). Cash testified that he remembered seeing graffiti about "James Earl Ray Day," including "I wish we could have a James Earl Ray Day so we could all get off for killing that nigger." Id.-236. The male plaintiffs all testified that Whirlpool cleaned up the bathroom walls in 2005, after this lawsuit was filed, and that they saw no further graffiti in the bathrooms thereafter. R.432-73 (Swader); R.427-83 (Beasley); R.428-226 (Cash). As to other graffiti, Beasley also testified about a "spare truck that had a sign on it with ... somebody with a rope around their neck," (R.427-92 (Beasley dep.)) and Talley testified that there was racist graffiti on the inside of the trailers that she loaded and unloaded: "I've seen KKK [and] nigger bitch." R.431-116-17 (Talley dep.). She also testified that "[t]here was a penis and ... above it was a black dick." Id.-118. Talley testified that a supervisor, Bob Cypress, would spray paint over the graffiti, but "when the trailer come back, two or three days, there's something worse. And this was all the time." Id.-117. Finally, several of the plaintiffs testified that they, and other African- American employees, were made to work harder at the same jobs than their white coworkers. Armstrong recounted: I had to do more work than [] most, and most of the blacks do. We have more to do than the whites do. The work is always doubled up on me all the time.... And I was told that I had to make time to do other things even though I already have a full load when others are sitting around in the aisle talking. And these are white tow motor drivers. And they're not doing anything half of the time, but I've got to stay busy all the time. R.429-69 (Armstrong dep.). Armstrong also testified about an incident where a supervisor told her explicitly that he had no reason to "write her up," but his manager "told him he had to." Id.-85. She testified that "the whites were not getting wrote [sic] up. It was only the blacks." Id.-86. Armstrong further testified that supervisor Randall Tidwell "didn't let [Armstrong] take breaks" like her white coworkers, and that "[h]e didn't want to see me stopped nowhere talking to anybody. And the other - the whites were stopping and talking. He never said nothing to them." Id.-117. Finally, Armstrong testified that supervisor Jack Ethridge had a "double standard" for the employees he supervised, including Armstrong, where he would "stay on" black employees "like harassment; you know, keeping up with what you're doing and making sure you stay busy all the time," "[b]ut he didn't with the whites ... [b]ecause he socialized with them." Id.-130-31. Beasley also testified that blacks were treated more harshly than whites for the same offenses and were not permitted to engage in conduct that whites were. R.427-257 (Beasley dep.). The plaintiffs brought suit in December 2003, claiming, inter alia, that African-American employees at Whirlpool's LaVergne, Tennessee facility "have been harmed ... (a) [b]y a working environment heavily charged with racial discrimination, resulting largely from the rampant racial harassment and use of racial slurs, epithets and stereotypes; and (b) [b]y Whirlpool management's awareness of, participation in and/or lack of response to the hostile working conditions." R.242-2-3 (3AC). B. District Court's Decision After discussing the general standard for a prima facie case, the district court began its analysis by observing that, to "establish a hostile work environment," "a plaintiff must demonstrate that the workplace was 'permeated with discriminatory intimidation, ridicule, and insult[] that is sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working environment.'" R.434-4 (Memorandum ("Mem.")) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation and quotation marks omitted)). The court observed that this inquiry requires courts to "look to the totality 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.'" Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998), and Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal citations omitted)). The district court also noted that "'a district court must consider harassment by all perpetrators combined'" and "'[keep] in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created thereby may exceed the sum of the individual episodes.'" Mem.-4 (quoting Williams v. Ford Motor Co., 187 F.3d 553, 562-63 (6th Cir. 1999) (quotation and citation omitted)). The district court then observed that "'the factfinder may consider similar acts of harassment of which a plaintiff becomes aware during the course of his or her employment, even if the harassing acts were directed at others or occurred outside of the plaintiff's presence.'" Id.-4- 5 (quoting Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 336 (6th Cir. 2008)). However, the court noted, as this Court observed in Hawkins, "'[t]his is not to say that a plaintiff's knowledge of other acts of harassment will necessarily establish a hostile work environment, or that a factfinder is required to give significant weight to other acts that are unrelated to the plaintiff's allegations.'" Id.-5. Rather, in assigning weight to acts of harassment that were directed at others or that occurred outside the plaintiff's presence, "the factfinder may consider factors such as the severity and prevalence of the similar acts of harassment, whether the similar acts have been clearly established or are mere conjecture, and the proximity in time of the similar acts to the harassment alleged by the plaintiff." Id. Turning to Armstrong's claim, after summarizing what it termed incidents that Armstrong was aware of or that she had witnessed personally, Mem.-7-8, the court noted that, although Armstrong "points to a litany of other alleged incidents of racial harassment," "without some evidence that Armstrong was aware of these incidents, they do not establish the existence of a hostile work environment."<3> Id.- 8 (citing Hawkins, 517 F.3d at 336, and Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999)). The district court then concluded, "[c]onsidering Armstrong's evidence on the whole, her allegations do not establish a genuine issue of fact as to whether she was subject to conduct that was sufficiently severe or pervasive so as to establish the existence of a hostile work environment." Mem.-9 (as amended by R.438-2 (Correction Order)).<4> The court noted that Armstrong "could only recall the barest specifics about the comments made by Travis," and that she "acknowledges that [Travis's] comments were not directed at her." Id. The court observed that "the other racist jokes [Armstrong] overheard are far removed in time from the majority of her allegations," and, "[a]dditionally, although the term 'gal' might have certain racist undertones, it is also commonly used as a colloquial expression and, in this case, there is no indication that the term was used in a derogatory fashion." Id. The court found that "Armstrong's most compelling evidence of a hostile work environment was her co-worker's reference to the Ku Klux Klan and his comment that 'he was going to tell his KKK buddies about - about us,' statements that certainly are troubling." Id. However, according to the court, "in light of the fact that these comments appear to have been isolated and not necessarily directed at Armstrong personally, they do not establish a genuine issue of fact as to harassment sufficiently severe as to alter the conditions of Armstrong's employment." Id. The court also noted that, although Armstrong "makes a number of allegations that she and other African-American employees were treated differently than Caucasian employees," id., "these allegations are based on Armstrong's own limited observations and there is scant evidence that these perceived slights were at all motivated by race." Id.-9-10. The court concluded, "these incidents do not constitute the type of discriminatory intimidation, ridicule, or insult that gives rise to a hostile work environment claim[.]" Id.-10. The court reached the same conclusion with respect to Talley's claim. Mem.-13. The court noted that Talley "acknowledged that no racial slurs or racially offensive remarks were ever directed at her personally," and observed that although Talley "was aware of a handful of employees making racial remarks, to the extent that she did not witness some of these remarks but only learned of them second-hand, those remarks have a somewhat diminished significance in establishing the existence of a hostile work environment." Id. The court also observed that, "of the comments that [Talley] did hear, a number have no apparent racial connotation, such as ... the use of the word 'ma,' or else can hardly be considered to contribute to a severe or pervasively hostile environment, such as Westberry's alleged 'rudeness.'" Id.-13-14 (as amended). According to the court, "[w]hat remains is essentially a handful of uses of the n-word and its derivatives, primarily by Travis, some racist jokes by Quiggle, a few references by Travis to the Ku Klux Klan and James Earl Ray, and the presence of racist graffiti that was removed as soon as she reported it to a supervisor. Even when considered as a whole, this does not establish a genuine issue of fact as to the existence of a hostile work environment." Id.-14. Turning to Swader, the court found that his allegations did "establish a genuine issue of fact as to whether he was subject to severe or pervasive harassment establishing the existence of a hostile work environment." Mem.-17 (as amended). The court found that "[t]wo incidents in particular compel this conclusion, and both relate to Swader's relationship with Caucasian co-workers[.]" Id. The court observed that "Swader's testimony establishes evidence as to not only the threat made by Willie against Swader's life, but also that Willie was motivated by a dislike of Swader that grew out of Swader's relationships - or Willie's perception of Swader's relationships - with Caucasian women," and took note of Willie's "history of violence," which "render[ed] his threat all the more real." Id. The court also found that "Swader's testimony demonstrates that Travis repeatedly harassed and intimidated [him] as a result of [his] relationship with Pope," and that, "[u]nlike many of the incidents alleged by his co-plaintiffs, Swader was the direct recipient of these comments, and they were physically threatening, particularly in the case of Willie's comments." Id. Thus, according to the court, "[c]ombined with the graffiti that Swader testified to observing and the comments that he repeatedly observed, Swader has established a genuine issue of fact that he was subject to a hostile work environment."<5> Id. The court next found that Beasley did not "establish[] a genuine issue of material fact as to the existence of severe or pervasive harassment." Mem.-21 (as amended). The court found that "[t]he specific statements and jokes to which he testified were relatively few and far between, and he did not testify that any incidents of racial slurs or threats were directed at him personally," and that, [a]lthough he complained about Travis's conduct, he provided few specific examples." Id. "Additionally," the court observed, "although the graffiti to which [Beasley] testified seemed to be an on-going problem, his testimony did not reveal any of the specific contents of the graffiti with the exception of a single instance of the letters 'KKK.'" Id. The court also found that, in certain instances, "Beasley's own testimony undermines his allegation that certain racial jokes to which he was exposed contributed to a hostile work environment; he testified that, when one co- worker told him jokes about O.J. Simpson, he did not find those jokes offensive ...." Id. The court concluded that "[t]his constellation of incidents does not collectively rise to a level sufficient to establish severe or pervasive harassment ...." Id. (as amended). Finally, the court also found that Cash's claim failed for lack of adequate evidence of severe or pervasive harassment. Mem.-26 (as amended). The court observed that "[m]ost of [Cash's] allegations center around the graffiti he observed," and that, "[a]lthough he did testify that he observed graffiti regularly and recalled some of the specific racial epithets and phrases that he observed, none of the graffiti was directed at him and the few instances of spoken epithets that were directed at him - specifically, the use of the word 'boy' by two supervisors - were isolated occurrences." Id. According to the court, "[a]lthough the persuasive power of incidents that Cash learned of second-hand is somewhat limited, even taking those incidents into account, the totality of the circumstances do not establish an issue of fact as to the hostile work environment that Cash alleges he experienced." Id. ARGUMENT ALL OF THE PLAINTIFFS ADDUCED EVIDENCE SUFFICIENT TO PERMIT A REASONABLE JURY TO CONCLUDE THAT THEY WERE SUBJECTED TO A SEVERE OR PERVASIVE RACIALLY HOSTILE WORK ENVIRONMENT WITHIN THE MEANING OF TITLE VII. Despite the district court's correct observations that Harris v. Forklift Systems, 510 U.S. 17, 21 (1993), requires courts to "look to the totality of the circumstances" in analyzing hostile work environment claims, and that this Court has provided extensive guidance on the "totality of the circumstances approach" in the context of a racial hostile work environment, the district court erred as a matter of law in concluding that the abundant evidence produced was insufficient to withstand summary judgment. Indeed, this Court's decision in Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999), to which the district court gave only the barest mention in its opinion, illustrates just how profoundly the district court erred in its analysis of the issue. The facts of Jackson are very similar to the facts of this case, involving a situation where "[w]orkers ... frequently and freely engaged in offensive conduct that was directed at African-American employees," including numerous racial epithets, graffiti, and threats. 191 F.3d at 651-53. This Court's language in Jackson bears repeating here: Regrettably, ... the district court excluded from its consideration evidence of virtually all of the incidents of racial harassment established by Jackson, on the grounds that they (1) were not directed at Jackson or did not occur in Jackson's presence, (2) did not involve overt racial overtones, or (3) were so commonplace at Quanex that they became, to the district court, "conventional conditions on the factory floor." The district court thereby adopted [an] extremely narrow view of workplace harassment ... in which every single member of a protected class would have to suffer a series of affronts both explicitly racial and personal in nature before she could claim the existence of a racially hostile work environment. In essence, ... each minority employee would have to show that the employer had an intent specifically to harass her, and could not proceed on a theory that the employer had a general intent to harass all employees of the minority group.... We find such a myopic view of harassment unacceptable, particularly in light of the directive in Harris that courts are to consider "all of the circumstances" in determining whether a hostile work environment exists. 191 F.3d at 659-60. The Jackson Court further observed that disaggregating the components of a hostile work environment claim "robs the incidents of their cumulative effect, and '[o]f course, when the complaints are broken into their theoretical component parts, each claim is more easily dismissed.'" Id. at 660 (quoting Williams, 187 F.3d at 562). Accordingly, in light of this Court's teachings in Jackson and other cases, the district court erred in analyzing the claims of each of the plaintiffs in this case in isolation and without regard to the totality of the racially hostile environment in which s/he worked. The testimony of all five plaintiffs in this case reflects an environment permeated with open racial hostility on an ongoing, daily basis. At a minimum, the district court failed to consider the evidence in the light most favorable to the nonmoving parties, the plaintiffs, as required on summary judgment, and in particular appears to have given extremely short shrift to both the severity and the pervasiveness of the hostile work environment at issue in this case. In several instances in its opinion, the court dismissed the plaintiffs' descriptions of explicit racial slurs as "sporadic and isolated," "not directed at" the plaintiff, or only something the plaintiff "heard about secondhand." However, in the context of explicit racial slurs and threats of violence like "nigger," references to the Ku Klux Klan, James Earl Ray, "killing niggers," and racial/sexual graffiti and references, this kind of conduct is unquestionably sufficiently severe to create a hostile work environment. See, e.g., Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15-7 (2006)<6> [hereinafter EEOC Compliance Manual, Race & Color] ("Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, [and] an unambiguous racial epithet such as the 'N-word.'"); Jackson, 191 F.3d at 652, 662 (where graffiti described by plaintiff included "graffiti in the women's rest room depicting a male and a female [] accompanied by comments comparing the penis sizes of white and black males, graffiti in the men's rest room depicting lynchings accompanied by the phrase, 'KKK is back,' [and] graffiti on a door of the plant that said, 'Blacks out back,'" ruling that "an abundance of racial epithets and racially offensive graffiti could hardly qualify as offhand or isolated, and that "such continuous conduct may constitute severe and pervasive harassment"); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1115 (9th Cir. 2004) (where "[r]acist graffiti such as 'nigger' and 'white is right' regularly appeared in the bathroom and on equipment," observing that "'repeated derogatory or humiliating statements ... can constitute a hostile work environment.'") (quoting Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000)). The fact that the graffiti were not "directed at" any particular individual does not at all diminish their significance as part of the racially hostile work environment at Whirlpool. See, e.g., Reeves v. C.H. Robinson Worldwide, 525 F.3d 1139, 1144 (11th Cir. 2008) ("The harassment Walker experienced was 'based on' his race because the 'race specific' language that was used was particularly offensive to him as a black male, regardless of whom the language targeted.") (quoting Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982)). Many of the incidents at issue here fall toward the extreme end of the severity spectrum and, in some cases, actually constitute threats of violence, particularly when considered in light of their audience. As this Court has observed, the fact "[t]hat the word 'nigger' is a slur is not debatable," and no employer should tolerate its usage. NLRB v. Foundry Div., Alcon Indus., Inc., 260 F.3d 631, 635 & n.5 (6th Cir. 2001); see also, e.g., McGinest, 360 F.3d at 1116 ("It is beyond question that the use of the word 'nigger' is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination."); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) ("Far more than a 'mere offensive utterance,' the word 'nigger' is pure anathema to African- Americans.") As to the many references to the KKK and James Earl Ray, who assassinated Martin Luther King, Jr., these terms are inextricably intertwined with the most extreme threat of racial violence. See, e.g., Barrett v. Whirlpool Corp., No. 08-5307, slip op. at 20 (6th Cir. Feb. 23, 2009) (observing that "blacks are, of course, the primary targets and victims of the Ku Klux Klan"); McGinest, 360 F.3d at 1116 ("'The mere mention of the KKK invokes a long and violent history sufficient to detrimentally affect any reasonable [African-American].'") (quoting Dickerson v. N.J. Dep't of Human Serv., 767 F. Supp. 605, 616 (D.N.J. 1991) (emphasis in original)); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 (7th Cir. 1991) (noting with approval the district court's observation that "[t]he most violent threats to black society are well known to come from [the KKK]"). In this context, even terms "[that] may appear innocent or only mildly offensive to one who is not a member of the targeted group ... [may] in reality be intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group." McGinest, 360 F.3d at 1116. Accordingly, the district court also failed to accord the record evidence its proper weight when it found that terms like "boy," "gal," and even "ma" were per se non- racial or insufficiently severe to factor into the hostile work environment analysis. The term "boy" has been discussed extensively in case law as a racial epithet referring back to slavery, see, e.g., Bailey v. USF Holland, Inc., 526 F.3d 880, 883 (6th Cir. 2008) (noting that workplace sensitivity training "specifically addressed the use of the term 'boy,' noting that it was a racial epithet used during slavery"); Tademy v. Union Pac. R.R., 520 F.3d 1149, 1160 (10th Cir. 2008) (noting that "boy" "is a term that has been used to demean African-American men, among others, throughout American history"), and the plaintiffs in this case testified that it was used frequently against African-American men at Whirlpool. See, e.g., R.429- 62 (Armstrong dep.); R.428-129, 253, 282 (Cash dep.); R.427-164 (Beasley dep.). Armstrong testified that she understood the term "gal" to be the female equivalent of "boy," also dating back to the era of slavery, and that she found it offensive. R.429-155 (Armstrong dep.). Even the term "ma," which the district court simply dismissed, could be a reference to the "Mammy" stereotype applied to African-American women, and Talley testified that the white man who called her "ma" only used it in reference to African-American women, not to white women. See, e.g., The Mammy Caricature, Ferris State Univ., Jim Crow Museum of Racist Memorabilia<7> ("Mammy is the most well known and enduring racial caricature of African American women."); R.431-125-26 (Talley dep.). Thus, even if the term "ma" is not viewed as intrinsically racial, a reasonable jury could find that its use in this context certainly was. The district court also erred in disregarding the fact that Dale Travis's serial harassment was allowed to continue essentially unchecked at the LaVergne plant for thirteen years. Indeed, the evidence suggests company management condoned and even participated in his conduct, and his racial barrages did not cease until he was ultimately terminated solely for unrelated reasons. As this Court has observed, "more weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff's claim that the workplace is both objectively and subjectively hostile." Hawkins, 517 F.3d at 337. In fact, the evidence reflects that this was precisely the effect of Travis's conduct at Whirlpool: Cash testified that Mark Watwood called several African-American women "niggers" and then said that "Dale [Travis] does it, why can't I call you one?" R.428-161 (Cash dep.). By failing to put an end to Travis's rantings, Whirlpool sent a message to African-American workers and other would- be harassers that this conduct was acceptable. In any case, as this Court noted in Jackson, an incident need not necessarily consist of explicitly racial content to constitute part of a race-based hostile work environment, so long as it occurs because of the victim's race. 191 F.3d at 661 ("Title VII has long afforded employees the right to work in an environment free from 'discriminatory intimidation, ridicule and insult,' without limiting this concept to intimidation or ridicule explicitly racial in nature.") (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)); EEOC Compliance Manual, Race & Color 15-7 n.119 (observing that "harassment need not be explicitly sexual, racial, religious, etc. to give rise to Title VII liability as long as it was because of the protected trait") (citing EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (1990)<8>). As the Jackson Court put it, "even though a certain action may not have been specifically racial in nature, it may contribute to the plaintiff's proof of a hostile work environment if it would not have occurred but for the fact that the plaintiff was African American." 191 F.3d at 662; see also id. ("[T]he district court should have done more than simply dismiss incidents that did not directly affect the plaintiff standing before it or incidents that did not carry explicit racial overtones; an examination of the totality of the circumstances required the district court to determine whether the incidents were happening only to employees of the protected class, and why to no one else."). Cf. Bailey, 526 F.3d at 886 (observing that the presence of explicitly racist statements can "'shed[] light' on what could otherwise be seen as the ambiguous motivations behind some of the other examples of harassment"). The district court thus erred in dismissing the plaintiffs' evidence that did not involve explicitly racial epithets or conduct, including Beasley's and Armstrong's claims that they and other African- Americans were made to work longer and harder in the same positions, and disciplined more severely, than their Caucasian counterparts. See, e.g., Allen v. Mich. Dep't of Corrs., 165 F.3d 405, 411 (6th Cir. 1999) (considering as part of plaintiff's hostile work environment claim that he, "unlike white officers, was constantly observed and followed" by superiors who "monitored his work more closely than that of white officers"; claim also included "receipt of counseling memoranda from his supervisors when [he] was several minutes late returning from lunch which resulted, [he] claims, from falsifications of the log book"). Finally, in addition to being sufficiently severe to constitute a hostile work environment, the racial conduct as alleged by the plaintiffs is also sufficiently pervasive for a reasonable jury to find that it constitutes a hostile work environment on that basis as well. In Hawkins, this Court observed that "comments and harassing acts of a 'continual' nature are more likely to be deemed pervasive." 517 F.3d at 333 (quoting Abeita v. Transam. Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998)). The Hawkins Court observed that, in Abeita, "the victim's assertion that the harasser's sexual comments were 'ongoing,' 'commonplace,' and 'continuing' was sufficient to survive summary judgment on the severe or pervasive test," and that "when a victim makes allegations of ongoing harassment, the 'inability to recount any more specific instances goes to the weight of her testimony, a matter for the finder of facts.'" Id. at 334 (quoting Abeita, 159 F.3d at 252). The comments, graffiti, and other incidents in this case, when viewed in light of the totality of the circumstances and of the plaintiffs' testimony that they occurred on a daily and ongoing basis, are more than sufficient to meet the standard in Hawkins. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Elizabeth E. Theran ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., Rm. 5SW18J Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6,936 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Elizabeth E. Theran Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., Rm. 5SW18J Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: March 12, 2009 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify pursuant to 6th Cir. R. 25(f) that on March 12, 2009, I electronically filed the foregoing amicus brief with the Clerk of Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that the following participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system: Counsel for Plaintiffs/Appellants: David W. Sanford, Esq. Sanford, Wittels & Heisler 1666 Connecticut Ave. NW, Ste. 310 Washington, DC 20009 (202) 742-7780 dsanford@nydclaw.com Counsel for Defendant/Appellee: Jeffrey S. Hiller, Esq. Littler Mendelson 21 E. State St. Suite 1600 Fifth Third Center Columbus, OH 43215 (614) 463-4201 jhiller@littler.com /s/ Elizabeth E. Theran Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., Rm. 5SW18J Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> Citations to the record are abbreviated "R." and refer to the district court docket entry number. Pincites refer to the internal pagination of the document (e.g., deposition transcript pages or affidavit pages), not PACER pagination, except where the document in question is otherwise unpaginated. <3> The court made the same observation, and drew the same legal conclusion, with respect to plaintiffs Talley, Beasley, and Cash. Mem.-13 (Talley), 19 n.15 (Beasley), 25 n.20 (Cash). <4> The court's original decision repeatedly used the phrase "severe and pervasive" to describe the standard for an actionable hostile work environment. After the defendant filed a "Rule 60(a) Motion for Correction Based on Clerical Mistake," the decision was "corrected to replace the term 'severe and pervasive' with the term 'severe or pervasive' wherever it occurs." R.438-1 (Correction Order). <5> The court found, however, that Whirlpool was not liable for any hostile work environment to which Swader may have been subjected. Mem.-17-18. <6> At http://www.eeoc.gov/policy/docs/race-color.html. <7> At http://www.ferris.edu/jimcrow/mammies/ (last visited Feb. 20, 2009). <8> At http://www.eeoc.gov/policy/docs/currentissues.html.