No. 08-5307 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________________________________________________ LYNETTE BARRETT, et al., Plaintiffs/Appellants, v. WHIRLPOOL CORPORATION, Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Middle District of Tennessee at Nashville No. 3:06-cv-0017 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS/APPELLANTS AND IN FAVOR OF REVERSAL _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L St., N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES.................................................................ii STATEMENT OF INTEREST.................................................................1 STATEMENT OF ISSUES................................................................. 2 STATEMENT OF THE CASE.................................................................2 A. Course of Proceedings....................................................... 2 B. Statement of the Facts....................................................... 3 C. District Court's Decision.................................................. 9 SUMMARY OF ARGUMENT................................................................. 13 ARGUMENT........................................................................... 14 I. A PLAINTIFF WHO IS TARGETED FOR HARASSMENT BECAUSE OF HER ASSOCIATION WITH COWORKERS OF A DIFFERENT RACE MAY ESTABLISH A CLAIM FOR A RACE-BASED HOSTILE WORK ENVIRONMENT UNDER TITLE VII WITHOUT ESTABLISHING ANY PARTICULAR DEGREE OF CLOSENESS TO HER COWORKERS.................................... 14 II. RACIAL HARASSMENT IS ACTIONABLE UNDER TITLE VII IF IT IS SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE CONDITIONS OF THE VICTIM'S EMPLOYMENT.............................................. 22 CONCLUSION...........................................................................27 CERTIFICATE OF COMPLIANCE............................................................28 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Anjelino v. N.Y. Times Co., 200 F.3d 73 (3d Cir. 1999).............................. 19 Cerros v. Steel Techs., Inc., 398 F.3d 944 (7th Cir. 2005)......................... 23 Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998), vacated in part on other grounds by Williams v. Wal- Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999)...................................15-16 Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878 (7th Cir. 1998)...................16, 17 EEOC v. Miss. Coll., 626 F.2d 477 (5th Cir. 1980)................................... 20 EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840 (9th Cir. 2005).................... 23 EEOC v. The Bailey Co., 563 F.2d 436 (6th Cir. 1977)............................ 19, 20 Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999)................................... 17 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)................................... 22 Harvill v. Westward Commc'ns, LLC, 433 F.3d 428 (5th Cir. 2005)...................22-23 Hawkins v. Anheuser-Busch, Inc., ___ F.3d ___, 2008 WL 423442 (6th Cir. Feb. 19, 2008)....................................................... 22, 24 Holcomb v. Iona Coll., ___ F.3d ___, 2008 WL 852129 (2d Cir. Apr. 1, 2008)............................................................ 15 Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999).................... 24, 25, 26 Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000).................... passim Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157 (5th Cir. 2007).......... 23 Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179 (2d Cir. 2001)....................19 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004)......................... 16 Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986).................................................................16, 17 Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999).................................................. passim Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972).............................19 Wanchick v. Great Lakes Health Plan, Inc., 6 Fed. Appx. 252 (6th Cir. 2001)......................................................................10 Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999)......................... 22 Winston v. Lear-Sigler, Inc., 558 F.2d 1266 (6th Cir. 1977)......................... 10 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq...............1, 2 42 U.S.C. § 2000e-2(a)(1)............................................................14 42 U.S.C. § 2000e-3(a)............................................................ 21 RULES Fed. R. App. P. 29(a).................................................................1 Fed. R. App. P. 29(d)................................................................28 Fed. R. App. P. 32(a)(5)............................................................ 28 Fed. R. App. P. 32(a)(6)............................................................ 28 Fed. R. App. P. 32(a)(7)(B)..........................................................28 OTHER AUTHORITIES Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15- 5 (2006), http://www.eeoc.gov/policy/docs/race-color.html............................15 Section 8, Retaliation, 2 EEOC Compliance Manual 8-4-6 (1998), http://www.eeoc.gov/policy/docs/retal.html........................................ 21 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.............................. 23-24 Stephan Thernstrom & Abigail Thernstrom, America in Black and White 153 (1997)...........................................................................25 Courtland Milloy, Hate Is Always In Style At A Gathering of the Klan, Washington Post, Oct. 18, 2006, at B1............................................. 25 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 a hostile work environment under Title VII based on her association with coworkers of a different race. In this case, the district court ruled that the white plaintiffs could not proceed with their claim of racial harassment under Title VII because their "association" with their black coworkers was not close enough. In so ruling, the district court misapplied the governing precedent of this Court and created an unduly rigid standard that has no support in the law and makes no sense in the context of determining whether a plaintiff has been the subject of a hostile work environment. 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 ISSUES<1> 1. Whether a plaintiff who can show that she was harassed because of her association with her black coworkers may establish a hostile work environment claim under Title VII regardless of the degree of closeness of her relationship with the coworkers. 2. Whether the district court erred insofar as it required the plaintiffs to demonstrate that the conduct of which they complained was sufficiently "severe and pervasive" to alter the terms and conditions of their employment. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court granting summary judgment and dismissing all of the plaintiffs' claims. Plaintiffs initiated this action by filing a complaint on January 10, 2006, alleging that the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by discriminating against them and subjecting them to a hostile work environment on the basis of race, and retaliating against them for complaining about their allegedly discriminatory treatment. (R.1, Complaint; R.82, Third Amended Complaint, at 1, 5-6<2>) The district court granted summary judgment dismissing all of the plaintiffs' claims on February 12, 2008. (R.177, Memorandum; R.178, Order) Plaintiffs' timely appeal followed on March 4, 2008. (R.179, Notice of Appeal) B. Statement of the Facts Lynette Barrett, WT Melton, and Treva Nickens are current and former white employees of the Whirlpool facility in LaVergne, Tennessee. (R.82, Third Amended Complaint, at 1<3>) Barrett began working as an hourly day-shift employee at the LaVergne plant in October 1984, and remains employed there to this day. (R.152-2, Barrett Aff., at 1) Melton worked as an hourly second-shift employee at the LaVergne plant for about 12 years, from January 1995 through approximately July 2007. (R.154-2, Melton Aff., at 1) Nickens worked as an hourly day-shift employee at the LaVergne plant for approximately 25 years, from May 1983 until approximately October 30, 2005. (R.153-2, Nickens Aff., at 1) Barrett, Melton, and Nickens testified that, during the course of their employment at the LaVergne plant, they were subjected to verbal abuse, threats, and hostile treatment on the basis of their association with and advocacy on behalf of their black coworkers. (R.82, Third Amended Complaint, at 2, 4) All three testified that they maintained workplace friendships with a number of black coworkers, and, in at least one instance, socialized with them outside of the workplace as well. Barrett testified that she was friendly with Lisa Majors both in and outside the workplace, and with Helen Lust and Walter Brown at work. (R.152-3, Barrett Dep., at 73-75) Barrett also related that she had helped Majors and Brown with typing and editing their résumés, coaching them for interviews, and recommending them for promotional opportunities. (Id. at 74-75) Melton testified that most of her friends at Whirlpool were black and that she ate lunch with an African American coworker named "Bee" "most everyday." (R.154-4, Melton Dep. vol. 2, at 103-04) Nickens testified that she was friendly with a black coworker named Henry Beasley at work "all the time," but that they did not socialize outside of work, and also mentioned "hang[ing] with" another black coworker, Linda Hatcher. (R.153-3, Nickens Dep., at 21, 85) Barrett, Melton, and Nickens testified in their depositions that they heard the word "nigger" and other racial slurs used by white employees around the LaVergne facility. (R.152-3, Barrett Dep., at 37, 43, 52; R.154-4, Melton Dep. vol. 2, at 27, 46, 93; R.153-3, Nickens Dep., at 78-79) Barrett was present when Dale Travis, a notorious user of racial epithets at the LaVergne facility, told another white employee that Majors "will be an uppity nigger now," and again when he stated loudly of Lust that "[t]he nigger bitch will get what's coming to her." (R.152-3, Barrett Dep., at 43, 37) Barrett also testified that she saw racist graffiti in the women's bathroom sometime in the 1990s, including the word "KKK" and the word "nigger" written over and over again in an inverted triangle, and more racist graffiti, including "KKK" and the image of a hangman's noose, written on the maintenance cart of a black employee, Pierre Hill, in 2006. (Id. at 52-54, 81) Barrett was also present when a white employee, on hearing that a black employee was taking off work for Martin Luther King Day, remarked, "Well, why can't we have a James Earl Ray Day?" (Id. at 105) Melton testified that Travis regularly called people "niggers" and said, "May the Klan be with you," or "Missed you ladies at the Klan meeting last night." She also testified that it was "common knowledge that it did no good to complain [to management] because the ones that could do something about it refused to[.]" (R.154-4, Melton Dep. vol. 2, at 26-27, 97) Melton also testified that she had heard a supervisor call another employee "one of them lazy niggers" (id. at 46), and a black coworker told her that he heard a supervisor use the term "nigger lover" to describe white employees who were "friends with the blacks." (Id. at 93- 95) Melton also stated in her deposition that she heard the "James Earl Ray Day" comment from both coworkers and supervisors, as well as jokes about a "watermelon day." (Id. at 96) Nickens testified that she heard racial jokes and slurs on a regular basis from several employees in the lunchroom in 2004-2005. (R.153-3, Nickens Dep., at 24-27) She also testified that another employee brought it to her attention in 2001 or 2002 that Travis "used the word 'nigger' a lot and said 'those fucking niggers' all the time," and that no disciplinary action was taken against him. (Id. at 35) Barrett, Melton, and Nickens all testified that they were very upset by the use of racial slurs in the workplace and found them extremely objectionable. (R.152-3, Barrett Dep., at 37-38; R.154-4, Melton Dep. vol. 2, at 27; R.153-3, Nickens Dep., at 22-25) All three also testified that, when they complained about the slurs or other acts of discrimination against their African American coworkers, certain white coworkers responded by targeting them for harassment, while their superiors either acquiesced or did nothing in response. Barrett testified that, when she confronted Travis about his use of racial slurs, he told her that "I've got a nine- millimeter and I'll come visit you." (R.152-3, Barrett Dep., at 84) Barrett also testified that a white coworker, Wendy Beam, would refuse to sit next to Majors in weekly group meetings and would reassign work tasks from Barrett and Majors to other white employees when Barrett and Majors were partnered together, even though the initial assignments had been made by Beverly Gordon, the group's actual supervisor. (Id. at 61-62) Barrett reported the reassignments to Gordon, but Gordon responded that Beam "probably just didn't realize she was doing it" and took no further action. (Id. at 62-63) Still other white coworkers, according to Barrett, turned their backs on her and ignored her if they saw her greet black employees working on the line. (Id. at 58) Melton testified that she was known at the LaVergne facility as someone who regularly "stood up for people that had no one to stand up for them." (R.154- 4, Melton Dep. vol. 2, at 24) Melton once escorted a Somalian employee to the medical department after she injured an eye on the line, and her supervisor told Melton she was "no good to him" and refused to talk to her afterwards. (R.154-3, Melton Dep. vol. 1, at 30) Melton testified that, after she underwent two surgeries to correct an injury in her right arm and was released to return to work, she was "treated differently from a lot of other people who had surgeries" - she was taken out of the lab where she had worked previously and put into a more strenuous position on the line rather than a less strenuous office position such as those more commonly offered to employees in her situation, and her pay was cut. (Id. at 27- 29) Melton also testified that, on one occasion after lunch with her friend Bee, a white coworker asked her, "How could you stand the smell?" (R.154-4, Melton Dep. vol. 2, at 103-04) Nickens testified that her harassment began as early as 1988 when a white employee named Jim Jones came up to her, red-eyed, threatening to kill her and to blow up the plant, and "looking for Linda Hatcher because he emphasized that I was not to hang with her because she was [a] . . . nigger." (R.153-3, Nickens Dep., at 15, 22) When Nickens responded that she didn't know where Hatcher was, Jones called Nickens a liar and grabbed her by the neck. (Id. at 15-16) Nickens testified that she ran away from Jones, who had already told her on several occasions that "I don't think you should be hanging around niggers." (Id. at 16) As a result of the incident, Whirlpool suspended and terminated both Jones and Nickens, although Nickens was eventually brought back to work six months later after she filed a grievance. (Id. at 20-21) In 2005, Nickens was approached by two white coworkers who told her about a conversation they had had recently with Travis, who had been fired from Whirlpool for unrelated reasons, in which Travis had said that Nickens was "slandering his name" at Whirlpool and that "wasn't nothing but assault and battery warrant for $150." (Id. at 38-39) According to Nickens, her coworkers told her that Travis "had sent word [to] make sure that Treva Nickens heard that comment." (Id. at 71) Nickens also testified that, "if you hung around blacks, you were outcasted." (R.153-3, Nickens Dep., at 42) She testified that, after she put in for a posted job, the company tried to delist it until the union forced it to relist it. (Id. at 42-43) On another occasion, there was a posting for a promotion on which Nickens planned to bid, and when her white supervisor found out he told her that she "would never get the job, that he would take it down before [she] got the job." (Id. at 60-61) Nickens also testified that she was told "probably once a week" by white coworkers, and at least once by a white manager, that she needed to "stay with her own kind," particularly with reference to her friendship with Beasley. (Id. at 47, 56) Barrett, Melton, and Nickens brought suit in January of 2006, claiming that they "have been and continue to be injured by a gauntlet of racial discrimination, verbal abuse, and hostile treatment." (R.82, Third Amended Complaint, at 2) They allege that they, as "white employees who do not disparage or minimize black employees, have been and continue to be adversely affected by the racially hostile environment at Whirlpool and, consequently, by the violation of their personal right to work in an environment free of racial discrimination." (Id.) They also allege that "[b]lack Whirlpool employees and white Whirlpool employees who refuse to participate in racially hostile conduct have been subjected to a hostile environment permeated with racial hatred, slurs, epithets, and stereotypes," and that "Whirlpool has done little or nothing to confront and eliminate this racism." (Id. at 2-3) C. District Court's Decision With respect to the plaintiffs' Title VII hostile work environment claims, the district court began by noting that "it is not necessary [] for a plaintiff to demonstrate 'strict membership' in a protected class to prevail on a Title VII claim." (R.177, Memorandum ("Mem."), at 6 (quoting Wanchick v. Great Lakes Health Plan, Inc., 6 Fed. Appx. 252, 266 (6th Cir. 2001))) The court observed that, under this Court's precedent, Title VII protects "those individuals who, though not members of a protected class, are nevertheless 'victims of discriminatory animus toward third persons with whom the individuals associate.'" (Id. (quoting Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999))) The court explained that such individuals "may pursue a Title VII claim if they were discriminated against either on the basis of their association with protected class members, . . . or on the basis of their advocacy on behalf of protected class members," and noted that the plaintiffs in this case assert both the associational and advocacy theories of Title VII coverage. (Id. (citing Tetro, 173 F.3d at 994; Johnson v. Univ. of Cincinnati, 215 F.3d 561, 575 (6th Cir. 2000); and Winston v. Lear-Sigler, Inc., 558 F.2d 1266, 1270 (6th Cir. 1977))) Beginning with Barrett's hostile work environment claim, the district court found, in relevant part, that summary judgment was warranted both because she failed to establish that she was a member of a protected class and because she did not "raise[] a genuine issue of fact as to the existence of an objectively hostile work environment." (R.177, Mem., at 17) The court acknowledged that this Court "declined to read in [to Title VII] a requirement that association requires a familial or intimate relationship." (Id. at 14 (citing Johnson, 215 F.3d at 574)) The court stated, "[u]ltimately, the import of Tetro is that a white Title VII plaintiff must demonstrate an association with a member of a protected class, but that relationship need not necessarily be familial or intimate." (Id. at 15) The court concluded, however, that in this case Barrett did not "raise[] a genuine issue of fact as to whether her relationships with her black co-workers at the La Vergne Facility constitute an association sufficient to entitle her to bring a hostile work environment claim." (Id.) The court stated that "Barrett argues that she befriended a handful of her black co-workers and describes several black co-workers as 'friends,'" but noted that "[s]he provides no evidence [] that those friendships constituted anything other than the casual, friendly relationships that commonly develop among co-workers but that tend to be limited to the workplace." (R.177, Mem., at 15) The court observed, "Barrett has not indicated that she socializes with any of her black co- workers outside of the workplace, that their families know each other, that they mutually provide the type of support and companionship that one would expect in a friendship that exists beyond the boundaries of one's workplace." (Id.) Accordingly, the court found, "[w]hile the sincerity of Barrett's claim is not in doubt, such standard workplace familiarity and collegiality does not establish an association for the purposes of bringing a hostile work environment claim. If that were the case, any white co-worker who maintained a passing friendly relationship with a black-coworker would have grounds for such a claim, in which case the rule requiring a white plaintiff to demonstrate an association would serve little purpose." (Id. at 16) The district court also noted Barrett's arguments that she had advocated on behalf of members of a protected class under Title VII when she assisted black co- workers in preparing résumés, recommended them for job openings, and complained about racist conduct she observed at the LaVergne facility. (R.177, Mem., at 16) The court declined to address the issue of whether such actions constituted protected advocacy, however, on the grounds that "the incidents Barrett complains of do not constitute severe and pervasive harassment under any circumstances." (Id. at 16-17) The court found that "the incidents about which Barrett complains were relatively sporadic and isolated and were not, by and large, directed at her, and thus do not permit the inference that they created an objectively hostile work environment." (Id. at 17) With respect to Melton's and Nickens' hostile work environment claims, the district court essentially reached the same conclusion. The court found that "one cannot reasonably infer that [Melton's] relationships [with her black coworkers] rose beyond the level of everyday workplace collegiality," and that "such conclusory allegations of association are insufficient to enable Melton to bring a hostile work environment claim under an association theory." (R.177, Mem., at 20) The court reached the same conclusion with respect to Nickens, finding that "there is scant evidence that [Nickens' workplace] friendships constituted anything beyond common workplace collegiality," and specifically noting that "Nickens acknowledged in her deposition that she does not socialize with Beasley outside of work." (Id. at 26) The court also found no need to reach Melton's and Nickens' claims of advocacy on behalf of protected class members for the same reasoning as it gave regarding Barrett's claim: their allegations "do not create a genuine issue of fact as to whether [they] suffered severe and pervasive harassment." (Id. at 21, 27) SUMMARY OF ARGUMENT This Court has held repeatedly that a plaintiff may state a claim of racial discrimination or harassment under Title VII based on her association with members of a different race. Neither this Court nor any other has held that a plaintiff must establish a particular degree of association with members of a different race, or that she must associate with them outside of the workplace, in order to establish that she was harassed because of her race within the meaning of Title VII. In this case, there is evidence that the three white plaintiffs were targeted for harassment in explicitly racial terms because of their association with black coworkers in the workplace. This evidence is sufficient to support a finding that the plaintiffs were subjected to a hostile work environment because of their association with these black coworkers. The evidence is also adequate to support a finding that they were targeted for harassment based on their advocacy on behalf of their black coworkers, which could, in turn, support either a hostile work environment claim or a retaliation claim under Title VII's "opposition clause." The district court also erred insofar as it required the plaintiffs to show that the harassment to which they were subjected was both severe and pervasive in order to establish a hostile work environment claim under Title VII. The standard, as articulated by the Supreme Court and by this Court, is in the disjunctive, "severe or pervasive," and the difference is a significant one. The district court also appears to have minimized the significance of the highly offensive racial epithets, graffiti, and other actions targeted at the plaintiffs in this case in evaluating whether summary judgment was appropriate. ARGUMENT I. A PLAINTIFF WHO IS TARGETED FOR HARASSMENT BECAUSE OF HER ASSOCIATION WITH COWORKERS OF A DIFFERENT RACE MAY ESTABLISH A CLAIM FOR A RACE-BASED HOSTILE WORK ENVIRONMENT UNDER TITLE VII WITHOUT ESTABLISHING ANY PARTICULAR DEGREE OF CLOSENESS TO HER COWORKERS. Section 703(a) of Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). As this Court observed in Tetro, 173 F.3d at 994-95, both the legislative history of the statute and the EEOC's consistent interpretation of this provision reflect that "because of race" is to be interpreted broadly, so as to give effect to the Congressional mandate to eradicate discrimination. Accordingly, both this Court and the EEOC have reached the conclusion that Title VII's prohibition of race discrimination, including racial harassment, includes discrimination based on association with individuals of a different race. See id. at 994 ("A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus for the discrimination is a prejudice against the biracial child."); Johnson, 215 F.3d at 574 ("Simply put, this Court has now spoken that in order to state a cognizable claim under Title VII, the plaintiff . . . need only allege that he was discriminated [against] on the basis of his association with a member of a recognized protected class."); Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15-5 (2006), http://www.eeoc.gov/policy/docs/race-color.html (interpreting Title VII's prohibition of race discrimination to encompass "discrimination against an individual because of his/her association with someone of a particular race"). The Second, Fifth, Seventh, Ninth, and Eleventh Circuits have reached the same conclusion. See, e.g., Holcomb v. Iona Coll., ___ F.3d ___, 2008 WL 852129, at *8 (2d Cir. Apr. 1, 2008) ("We . . . hold that an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race."); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), vacated in part on other grounds by Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) ("Title VII prohibits discrimination in employment premised on an interracial relationship."); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 884 (7th Cir. 1998) (noting support for associational race discrimination claims where "the alleged discrimination was because of the employee's race, as § 2000e-2(a) requires, in conjunction with the employee's association with the individual of another race"); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004) (observing that "[h]ostile conduct that attempts to sever or punish only those friendships that are interracial" may create an actionable hostile work environment); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) ("Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race."). The district court in this case, while acknowledging the holding of Tetro, required the plaintiffs to show that their friendships with their black coworkers were more than "the casual, friendly relationships that commonly develop among co-workers but that tend to be limited to the workplace." (R.177, Mem., at 15) In so doing, the district court imposed an unduly rigid standard that has no support in the law and makes no sense in the context of determining whether a plaintiff has been targeted for racial harassment. In order to establish a Title VII claim based on a racially hostile work environment, a plaintiff must show, inter alia, that she was subjected to unwelcome harassment based on race. See, e.g., Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). A Title VII plaintiff is free to use any admissible evidence to demonstrate that hostile words or actions directed against her in the workplace were racially motivated, and neither this Court nor any other jurisdiction requires a plaintiff to adduce a particular type of evidence, such as a certain degree of association, in support of such a claim. Indeed, the existing case law is to the contrary. See, e.g., Johnson, 215 F.3d at 574 (under Tetro, "in order to state a cognizable claim under Title VII, the plaintiff . . . need only allege that he was discriminated [against] on the basis of his association with a member of a recognized protected class"); Drake, 134 F.3d at 884 ("[T]he key inquiries should be whether the employee has been discriminated against and whether that discrimination was 'because of' the employee's race[;] . . . we do not believe that an objective 'degree of association' is relevant to this inquiry."); Parr, 791 F.2d at 892 (citing case law involving both intimate and non-intimate interracial associations, and noting the EEOC's consistent position that "an employer who takes adverse action against an employee or a potential employee because of an interracial association violates Title VII"). The evidence in this case provides a striking and apt illustration of precisely why the "degree of association" between coworkers, and, specifically, whether they socialize outside of the workplace, may be entirely irrelevant to whether a given plaintiff has been targeted for harassment because of her association with members of a different race. There is evidence in the record in this case that Nickens was told repeatedly to "stay with her own kind" and had her life threatened for "hanging around niggers," while Melton was told that white employees who were friendly with their black coworkers were called "nigger lovers" and Barrett had work taken away from her when she was paired with a black teammate. Whether individuals like Dale Travis knew, or cared, whether the plaintiffs in this case socialized with their black coworkers outside of work is irrelevant. The point is that the harassers in this case saw the plaintiffs at work associating with individuals of a different race, and that was enough to incur the harassers' wrath and to have the plaintiffs branded as "nigger lovers" and targets for harassment. Because the degree of association plaintiffs had with black co- workers was sufficient to provoke hostile treatment, it was enough to support their claim that they were harassed because of their race. We note that this associational issue with respect to the hostilities directed at the plaintiffs themselves is different from the issue of whether a plaintiff has constitutional standing to bring suit. The three plaintiffs in this case unquestionably have constitutional standing to raise a claim under Title VII because they allege that they have been subjected to a hostile work environment on the basis of their race and that they have been injured as a result. This is a different legal issue from the question of whether a plaintiff has constitutional standing to assert a claim of discrimination against individuals of a different race, addressed by the Supreme Court in Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972), and by this Court in EEOC v. The Bailey Co., 563 F.2d 436 (6th Cir. 1977). In the constitutional standing cases, the issue is whether a plaintiff of one race has standing to bring suit as a "person claiming to be aggrieved" under Title VII based on discrimination targeted at individuals of another race; the usual theory is deprivation of benefits based on lack of association with racial minorities in the workplace. See, e.g., Bailey Co., 563 F.3d at 453 (holding that "the definition of 'a person claiming to be aggrieved' under Title VII includes a white person . . . who may have suffered from the loss of benefits from the lack of association with racial minorities at work"); Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 186-87 (2d Cir. 2001) (discussing cases); Anjelino v. N.Y. Times Co., 200 F.3d 73, 90-91 (3d Cir. 1999) (reviewing cases). The EEOC has long taken, and continues to take, the position that a plaintiff who can meet the requirements of Article III standing may file a charge and bring suit alleging discrimination against individuals of a different race, so long as she can demonstrate sufficient harm to herself. See, e.g., Bailey Co., 563 F.3d at 442; EEOC v. Miss. Coll., 626 F.2d 477, 481 (5th Cir. 1980) (alleging that white plaintiff "can assert a charge of race discrimination against the College because she has standing to assert discrimination that affects her 'working environment'").<4> The plaintiffs' advocacy on behalf of their black coworkers could also support a hostile work environment claim or a retaliation claim if they establish that they were harassed or discriminated against because of that conduct. This Court held in Johnson that a plaintiff may state a claim "for [race] discrimination based upon his advocacy on behalf of minorities because the discrimination would be 'because of such individual's race,' where the race of the minorities for which he was advocating would be 'imputed'" to the plaintiff. 215 F.3d at 575 (citing Tetro, 173 F.3d at 995). The district court in this case declined to reach the question of whether the plaintiffs were able to show membership in a protected class based on this Court's "advocacy" theory of association because it concluded that there was no actionable hostile work environment in any case. In the Commission's view, when the evidence in the record is viewed in the light most favorable to the plaintiffs, as required on summary judgment, there can be little question that all three plaintiffs engaged in conduct that would qualify either as "advocacy" sufficient to bring them within Title VII's "because of race" requirement or as "protected conduct" within the meaning of section 704(a)'s prohibition on retaliation. In most cases, conduct that would constitute advocacy on behalf of a protected class, whether complaining about discrimination or refusing to go along with discriminatory policies, would sustain a separate claim for retaliation. See Section 8, Retaliation, 2 EEOC Compliance Manual 8-4-6 (1998), http://www.eeoc.gov/policy/docs/retal.html. In this case, the conduct of all three plaintiffs, who complained openly and repeatedly either to their coworkers, to management, or to both about the racial hostility at the LaVergne facility, fits comfortably within either the "opposition" clause of section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), or this Court's "advocacy" theory of association with respect to a hostile work environment. See Johnson, 215 F.3d at 575 ("the fact that Plaintiff has not alleged discrimination because of his race is of no moment inasmuch as it was a racial situation in which Plaintiff became involved - Plaintiff's advocacy on behalf of women and minorities in relation to Defendant's alleged discriminatory hiring practices - that resulted in Plaintiff's discharge from employment.") (emphasis in original); id. at 579 (noting with approval that the EEOC "has identified a number of examples of 'opposing' conduct which is protected by Title VII, including complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by person other than the employer"). II. RACIAL HARASSMENT IS ACTIONABLE UNDER TITLE VII IF IT IS SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE CONDITIONS OF THE VICTIM'S EMPLOYMENT. As this Court has repeatedly observed, the Supreme Court held in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), that Title VII is violated "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" See, e.g., Hawkins v. Anheuser-Busch, Inc., ___ F.3d ___, 2008 WL 423442 (6th Cir. Feb. 19, 2008), at *8 (observing that Harris uses "the phrase 'severe or pervasive' as opposed to 'severe and pervasive'"); Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999) (characterizing the "severe or pervasive test" as "Harris's core holding"). With respect to the hostile work environment claims of all three plaintiffs in this case, however, the district court dismissed them on the grounds that the incidents in questions "do not constitute severe and pervasive harassment." (R.177, Mem., at 16-17, 21, 27) (emphasis added). The district court's use of the conjunctive "and" rather than the disjunctive "or" makes an important difference in how the case is analyzed. See Harvill v. Westward Commc'ns, LLC, 433 F.3d 428, 435 (5th Cir. 2005) (observing that "the requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law"). As the EEOC and the courts have repeatedly noted, the concepts of severity and pervasiveness are complementary and, in a sense, inversely related for the purposes of hostile work environment analysis: the more severe the conduct, the lesser the requisite showing of pervasiveness, and vice versa. See, e.g., Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007) (observing that "the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct" (internal citation and quotation marks omitted); EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 847 (9th Cir. 2005) ("The rule is that the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.") (internal citation and quotation marks omitted); Cerros v. Steel Techs., Inc., 398 F.3d 944, 951 (7th Cir. 2005) (recognizing that "pervasiveness and severity are, to a certain degree, inversely related; a sufficiently severe episode may occur as rarely as once, while a relentless pattern of lesser harassment that extends over a long period of time also violates the statute") (internal citation and quotation marks omitted); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (BNA) (1990) ("the more severe the harassment, the less need to show a repetitive series of incidents").<5> The district court thus appears to have relied on the wrong legal standard when it dismissed the incidents experienced by all three plaintiffs as sporadic, isolated, and targeted at others. Indeed, this Court has reiterated on several occasions that harassing acts of which a plaintiff becomes aware during the period of his or her employment are relevant to the question of whether she suffered a hostile work environment, regardless of whether the acts were directed at her or occurred in her presence. See Hawkins, 2008 WL 423442, at *10-11 (citing cases). As this Court pointed out in Hawkins: [M]ore 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. Id. at *11. In light of the conduct of Dale Travis and other repeat harassers reflected in the record in this case, the district court's conclusion seems particularly lacking in support. Moreover, while the district court stated in passing that it was mindful of this Court's language in Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999), cautioning district courts against "minimiz[ing] proof of persistent racial slurs and graffiti," the court seems to have gone on to do just that. For example, the record reflects that repeated references were made, in the plaintiffs' presence, to the Ku Klux Klan and to inquiries about their attendance at Klan meetings. These are the kinds of comments that, as this Court put it in Quanex, are more than "merely offensive." Throughout its history, the Klan has been known not only for targeting African Americans for violence, but also for perpetrating and celebrating violence against whites whom it deemed sympathizers with the cause of African Americans or other minorities. See, e.g., Stephan Thernstrom & Abigail Thernstrom, America in Black and White 153 (1997) (describing the murder of civil rights activists Michael Schwerner and Andrew Goodman, who were white, and James Chaney, who was black, by the Klan in Mississippi in 1964); Courtland Milloy, Hate Is Always In Style At A Gathering of the Klan, Washington Post, Oct. 18, 2006, at B1 (describing attendance at a 2006 Klan gathering at Harper's Ferry "marking the 147th anniversary of [white] abolitionist John Brown's ill-fated raid on the federal arsenal there. The Klan had come to celebrate Brown's being captured and hanged 'by his greasy neck,' as one Klansman put it."). These were not insignificant comments, and they cannot be deemed to have been "targeted at others" simply because they reference the Klan - particularly when they were made directly to the plaintiffs! The record also reflects that the subjectively and objectively offensive term "nigger lover" was used to describe white employees who associated with black employees at the LaVergne facility, and that white employees who maintained workplace friendships with black employees were repeatedly told to "stay with their own kind" and were in some instances directly threatened with weapons or physically menaced by white harassers. The district court appears to have given short shrift to this evidence in concluding that none of the plaintiffs in this case had adduced sufficient evidence of an actionable hostile work environment to survive summary judgment. In light of the factual similarities between the hostile work environment in this case and that in Quanex, one passage from this Court's decision in that case bears repeating here: The evidence demonstrates that Quanex management adopted the attitude that everyone knew the plant was a 'redneck' environment, and that therefore, racially offensive conduct taking place there was . . . conduct African-American employees had to accept as part of life at Quanex. There could hardly be a response more insensitive or insulting, to African Americans and Caucasians alike. 191 F.3d at 666. The same holds true in this case, only the racially offensive conduct was targeted both at African American employees and at white employees who were deemed to be too friendly with their African American coworkers. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (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 6,370 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. _________________________________ Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: May 7, 2008 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and six copies of the foregoing brief with this Court this 7th day of May, 2008, by overnight delivery, postage pre-paid. I also certify that I served two copies of the foregoing brief this 7th day of May, 2008, by overnight delivery, postage pre-paid, to the following counsel of record: Counsel for Plaintiffs/Appellants: David W. Sanford, Esq. Sanford, Wittels & Heisler 1666 Connecticut Ave., NW, Ste. 310 Washington, DC 20009 (202) 742-7780 Counsel for Defendant/Appellee: Adam C. Wit, Esq. Littler Mendelson 200 N. LaSalle St., Ste. 2900 Chicago, IL 60601 (312) 372-5520 ________________________________ Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (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 Third Amended Complaint was the operative complaint at the time of the motions for summary judgment in this case. <4> The Commission does not take a position in this case on whether or not the plaintiffs have met the requirements of Article III standing sufficiently to bring suit challenging the race-based hostile work environment directed at their black coworkers. <5> At http://www.eeoc.gov/policy/docs/currentissues.html.