No. 10-3590 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ DION BERRYMAN, et al., Plaintiffs-Appellants, v. SUPERVALU HOLDINGS, INC., et al., Defendants-Appellees. ____________________________________________ On Appeal from the United States District Court for the Southern District of Ohio, Western Division No. 3:05-cv-00169 ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL ____________________________________________ P. DAVID LOPEZ SUSAN R. OXFORD General Counsel Attorney VINCENT BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 131 M Street, N.E. Assistant General Counsel Washington, D.C. 20507 (202) 663-4791 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 DISTRICT COURT DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . .10 ARGUMENT The District Court Erred Because a Reasonable Jury Could Find Plaintiffs' Repeated Exposure to, and Awareness of, These Racially Offensive Remarks, Lyrics, Pictures, and Graffiti Created a Hostile Work Environment Under Title VII. . . . . . . . . . . . . . . 14 A. The district court applied the wrong standard for claims of hostile work environment when it considered whether the plaintiffs' alleged racial harassment was sufficiently "severe and pervasive" as a matter of law, rather than whether the evidence would permit a reasonable jury to find the alleged incidents were "severe or pervasive.". . . . . . . . . . . . . . . . . . 14 B. A jury could find, on this record, that plaintiffs were subjected to an actionable hostile work environment based on their race.. . . . . . . . . . . . .18 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . 17 Bailey v. Binyon, 583 F. Supp. 923 (N.D. Ill. 1984). . . . . . . . . . . . . . . 24 Bailey v. USF Holland, Inc., 526 F.3d 880 (6th Cir. 2008). . . . . . . . . . . . 26 Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir. 2009). . . . . . . . . . . . . 15 Betts v. Costco Wholesale Corp., 558 F.3d 461 (6th Cir. 2009). . . . . . . . 26, 27 Boyd v. State Farm Ins. Cos., 158 F.3d 326 (5th 1998). . . . . . . . . . . . . . 27 Bourini v. Bridgestone/Firestone No. Am. Tire, 2005 U.S. App. LEXIS 5194 (6th Cir. Mar. 30, 2005). . . . . . . . . . . . 13, 27 Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878 (8th Cir. 2002) 22 Bowman v. Shawnee State Univ., 220 F.3d 456 (6th Cir. 2000). . . . . . . . . . . .20 Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993). . . . . . . . .23 Cerros v. Steel Technologies, 288 F.3d 1040 (7th Cir. 2002). . . . . . . . . . . .19 Daniels v. Essex Group, Inc., 937 F.2d 1264 (9th Cir. 1991). . . . . . . . . . . .27 Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906 (7th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . 25 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). . . . . . . . . . . . . . . . . . 20 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . 16, 22 Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . .11, 19, 21 Green v. Franklin Nat'l Bank of Minn., 459 F.3d 903 (8th Cir. 2006). . . . . .19, 24 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . 15, 19, 22 Harvill v. Westward Commc'ns, 433 F.3d 428 (5th Cir. 2005). . . . . . . . . . . . 16 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008). . . . . . . . .15, 18 Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000). . . . . . . . . 15 Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999). . . . .13, 18, 19, 20, 21, 22 Jeffries v. Metro-Mark, Inc., 45 F.3d 258 (8th Cir. 1995). . . . . . . . . . . . 25 Kelly v. Senior Centers, Inc., 2006 U.S. App. LEXIS 3139 (6th Cir. Feb. 8, 2006). . . . . . . . . . . . 13, 27 Ladd v. Grand Trunk Western R.R., 552 F.3d 495 (6th Cir. 2009). . . . . . . . . . 11 Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998). . . . . . . . . . . . 16 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004). . . . . . . . . . . . 24 Moore v. KUKA Welding Sys., 171 F.3d 1073 (6th Cir. 1999). . . . . . . . . . . . 21 NLRB v. Foundry Div., Alcon Indus., Inc., 260 F.3d 631 (6th Cir. 2001). . . . . . 23 Noble v. Brinker Int'l, Inc., 391 F.3d 715 (6th Cir. 2004). . . . . . . . . . . . 10 Oates v. Discovery Zone, 116 F.3d 1161 (7th Cir. 1997). . . . . . . . . . . . . . 25 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). . . . . . . . 15, 20 Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906 (8th Cir. 2003). . . . . . . 19 Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426 (2d Cir. 1999), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27 Rocha Vigil v. City of Las Cruses, 119 F.3d 871 (10th Cir. 1997). . . . . . . . 22 Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993). . . . . . 23 Smith v. Leggett Wire Co., 220 F.3d 752 (6th Cir. 2000). . . . . . . . 13, 27, 28 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). . . . . . . .23, 25, 26 Tademy v. Union Pac. R.R., 520 F.3d 1149 (10th Cir. 2008). . . . . . . . . . . . 26 Webb v. Worldwide Flight Serv., Inc., 407 F.3d 1192 (11th Cir. 2005). . . . . . . 24 White v. BFI Waste Servs., 375 F.3d 288 (4th Cir. 2004). . . . . . . . . .23, 24, 25 Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999). . . . . . . . . . 20 Worth v. Tyer, 276 F.3d 249 (7th Cir. 2001). . . . . . . . . . . . . . . . . . 16 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . 1 42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 1981. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 CONSTITUTIONAL PROVISIONS U.S. Const., Art. I § 2 cl.3. . . . . . . . . . . . . . . . . . . . . . . . . . 24 MISCELLANEOUS Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual (2006). . . . 23 EEOC Policy Guidance on Current Issues of Sexual Harassment (3/19/90). . . . . . 20 Herbert Alptheker, Vol. I A Documentary History of the Negro People in the United States 58 (1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC or Commission) is charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Title VII prohibits discrimination because of race in an employee's terms and conditions of employment, including hostile work environment based on race. See 42 U.S.C. § 2000e-5. The five plaintiff-appellants appeal the district court's dismissal of their claims of racial harassment under 42 U.S.C. § 1981 and Ohio law. This Court applies Title VII's standards for claims of hostile work environment based on race to assess claims of racial harassment under § 1981 and Ohio law. In dismissing the plaintiffs' racial harassment claims, the district court concluded that the plaintiffs allege incidents that are not sufficiently severe and pervasive to be actionable under Title VII standards. The district court's ruling misstates the applicable standard, appears to apply an improper standard, and conflicts with the EEOC's longstanding views on what constitutes a hostile work environment based on race in violation of Title VII. The district court's analysis, if accepted by this Court, would impede the EEOC's enforcement of Title VII by imposing a standard that, the Commission believes, would make it more difficult than Congress intended for victims of harassment to establish a claim under Title VII. We therefore offer our views to the Court in support of reversal. STATEMENT OF THE ISSUES <1> 1. Did the district court apply an improper standard for claims of hostile work environment under Title VII by considering whether, on a motion for summary judgment, plaintiffs' evidence demonstrated, as a matter of law, racial harassment that was "severe and pervasive" rather than considering whether a reasonable jury could find this hostile conduct was "severe or pervasive"? 2. Could a reasonable jury find that the racially offensive comments, pictures, graffiti, and song lyrics to which the plaintiffs were exposed in the workplace were "severe" or "pervasive"? STATEMENT OF FACTS The five plaintiffs who filed this appeal are African Americans who have been employed in different capacities as warehouse workers in SuperValu's Xenia, Ohio facility for more than 20 years: Lanton since 1976, Bush since 1985, Hightower since 1986, Smith since 1987, and Berryman since 1989. See Lanton Deposition (Dep.) at 9; Bush Dep. at 15; Hightower Dep. at 11; Smith Dep. at 10; Berryman Dep. at 31. Along with six other African American SuperValu employees, they filed this lawsuit alleging, among other claims, hostile work environment based on race including exposure to racially offensive jokes, music, and comments by co-workers and repeated exposure to racially offensive graffiti on bathroom walls and other workplace locations. R.1 (complaint).<2> All of the plaintiff-appellants observed offensive workplace graffiti that included the word "nigger." Plaintiff Andre Hightower stated that from 1986 through 2005, he saw the word "nigger" written on a bathroom stall "yearly, and more than once every year . . . . [in] [b]oth bathrooms." Hightower Dep. at 23-26 (saw this "many times" each year). Five or six times between 2000 and 2004, Plaintiff Dion Berryman saw the word "nigger" (and once "nigger monkeys") written on the walls of the bathroom stalls. Berryman Dep. at 100-04. In 2005 and 2006, respectively, Plaintiffs Jesse Smith and Robert Bush also saw the word "nigger" written in the bathroom. Smith Dep. at 21-24, 70-74; Bush Dep. at 7-8, 81-83. Hightower explained that the SuperValu management "uses the same bathroom." Hightower Dep. at 27-28. Six or seven times from 2000 to 2002, Hightower also saw the word "nigger" written in chalk on "slip sheets," large pieces of cardboard in the warehouse aisles. Id. at 28-29. Two or three times during the same time frame, Berryman observed the word "nigger" written on pallets in the Grocery side, Berryman Dep. at 105-06, and once in 2005 he saw it written on his double pallet jack machine. Id. at 111-12. A number of times in 2005 and 2006, Berryman saw or was told of graffiti in the bathroom regarding a female co-worker, Karen Spurr, using the term "nigger," including when co-worker Greg Hamlet told Berryman of "vulgar" bathroom graffiti using the term "black cock." Berryman Dep. at 75-86. Some of this racial graffiti was threatening. The bathroom graffiti that Hightower showed Smith in March 2005 said "death to niggerz." Smith Dep. at 21-26, 70-73. Hightower also observed bathroom graffiti stating: "Niggers go home, Niggers you aren't wanted," and showed it to another employee. Hightower Dep. at 26. In 2000, Plaintiff Dion Berryman saw "You're not wanted here, you nigger" written in a bathroom stall and reported it to SuperValu management. Berryman Dep. at 100-02. Some of the racial graffiti included offensive pictures. Hightower saw photographs that plaintiff Kevin Huff had taken of racial graffiti on the warehouse floor that included, in addition to the word "nigger," a drawing of people with "large lips, nappy hair." Hightower Dep. at 30-33. A few times, Berryman saw drawings of monkeys "with big lips, big ears," O.J. Simpson, and dark people drawn on boxes and poles at SuperValu's warehouse, which he reported to Human Resources Director John Schulcz. Berryman Dep. at 113-27. On one occasion in 2004 or 2005, Berryman found a caricature of O.J. Simpson drawn on the back wall of the freezer, in a work area where other employees and at least one supervisor travelled regularly. Id. at 119-126. After no one removed the picture for about a month, Berryman reported it to John Schulcz. Id. at 122-23. Berryman showed the picture to Bush, telling Bush he had reported it to a supervisor, but it had not yet been removed. Bush Dep. at 75-78, 165-66. Berryman also told Hightower about the drawing. Hightower Dep. at 121-24. Bush described the drawing as a "derogatory" depiction of O.J. Simpson in a car, "like he's running from the police," and told Jesse Smith about it. Bush Dep. at 7-8, 73-78. Appellants were also subjected to racially derogatory comments and music. Among the racially hostile comments reported, Lanton stated that at various times, co-workers called him "nigger" and "boy." Lanton Dep. at 99-101. Berryman stated that, in 2001, a co-worker told him to "take [his] black ass back to work." Berryman Dep. at 154-58. In 2004, someone said the word "nigger" over the Vocollect system. Id. at 127-28. (Berryman played the recorded statement for his supervisor, who purported to be unable to understand it. Id. at 129-30. Berryman then played the same recording for Bush, who had no difficulty understanding it. Id. at 130-31.) Hightower said that African American employee Jeff Edwards told him Caucasian employee Bill Thomas had "used the N word referring to Jeff Edwards." Edwards complained to the warehouse manager, "but the company saw fit to just talk to Bill, tell him don't let this happen again, and there was no discipline issued" against Thomas. Id. at 71-73. At various times when Hightower, Berryman, Bush, and Smith were working in the warehouse, they all heard co-workers playing loud music with the word "nigger" in the lyrics, and said they were offended by it. Hightower Dep. at 59-60, 223 (Hightower heard such music in 2004); Berryman Dep. at 255-60 (heard such music in the warehouse "every day" including during the week before his September 2007 deposition); Bush Dep. 107-09 ("many . . . times" Bush heard "a lot of guys in the warehouse" playing rap music that repeated the word "nigger"); Smith Dep. at 64 (heard music containing the word "nigger" "played a lot" by employees). Some of the comments appellants considered objectionable came from supervisors or union officials. Caucasian supervisor Dave Brown referred to Hightower as the "big buck in the orange hat." Hightower Dep. at 97-99. In 2002 or 2003, Supervisor Aaron Pelfrey told Berryman that an employee had asked Pelfrey why he gave "them niggers easy jobs." When Berryman asked Pelfrey "[w]hy he didn't do something about" such comments, Pelfrey "didn't respond." Berryman Dep. at 201-02. Around the same time, Bush had a conversation with the chief union steward concerning what would happen if a white bargaining unit employee called Bush a "nigger." Bush Dep. at 188-90. The chief union steward told Bush that the union would defend the white employee. Id. at 188-90. Bush told Plaintiff Jesse Smith what the chief union steward said. Id. at 190-91. The presence of racial graffiti and racially-derogatory comments was not a new problem at SuperValu. Bush attested that in 1985, when he was in line with other employees to punch out at the end of the day, Caucasian co-worker Kevin Jordan told him his new nickname was "Buckwheat." Bush Dep. at 24-26. When Bush told Jordan, "[Y]ou are not going to call me Buckwheat," Jordan "[s]tarted laughing and everybody started laughing. . . . They just looked at me and started laughing." Id. at 27. Bush told his supervisor, Jay Kessler, about it, "and he just laughed." Id. at 27-28. Two or three days later, Caucasian co-worker Terry Walker told Bush, "Tom Bird is a nigger but you not a nigger." Bush again told his supervisor, but Bush assumed "nothing" happened to Walker because he never heard anything more about it. Id. at 28-31. Lanton attested that in 1988 he overheard co-worker Jeff Nemer repeatedly use the word "nigger" while relating a story to another employee in the employee break room. The employee break room "was full of people" at the time; Lanton objected to Nemer and then reported the incident to his supervisor the same day. Lanton Dep. at 21-25. In 1988-89, Plaintiff Huff showed Bush a wooden skid with the words "nigger, go back" written on it. Bush Dep. at 78-81. In 1989, Caucasian co-worker Billy Pigg called Berryman a "dumb nigger." (Berryman reported the incident to his supervisor but does not know if SuperValu took any action in response.) Berryman Dep. at 142-44. In 1990-91, Caucasian co-worker Brett Randall called Berryman a "nigger." (Berryman reported this incident; both men got written up.) Id. at 134-41. In 1990, Plaintiff Ronald Lanton observed the word "nigger" written on a wall in one of the bathrooms. About the same time, he saw the word "nigger" written on a wall by the water fountain just outside the same bathroom. Lanton Dep. at 54-58. Although SuperValu asserts it took steps to stop this racially offensive behavior, racial pejoratives continued. Plaintiff Hightower stated that in 1997, Caucasian co-worker Dave Patrick said "F you, Buckwheat" over an intercom that could be heard throughout the warehouse, including the office. Hightower believed the words were directed at him because he was the only African American employee working that shift and had just used the intercom "to call [his] pulldown." Hightower Dep. at 179-85. Hightower was offended by the "derogatory" "Buckwheat" reference, which everyone working that night could hear. Id. at 181-84. Hightower was offended even further, however, that his Caucasian supervisor later said, "oh, that's just like him calling you a nigger," interpreting the supervisor's comment as "[taking] advantage of the situation to call [Hightower] a nigger." Id. at 179, 182-84. Other African American employees of SuperValu experienced or observed similar instances of racially derogatory and offensive conduct, pictures, or comments during this time. In May 2004, Plaintiff Huff overheard Caucasian co- worker Gary Everitt tell Caucasian co-worker Delbert Tackett that if he (Everitt) was fired, "Then I'll get paid like those four monkeys did," referring to four black employees who had filed a discrimination lawsuit against SuperValu. Huff Dep. at 85-87. Tackett later told Hightower about the incident. Hightower Dep. at 220-22 (Hightower understood Everitt's comment as a reference to the settlement of the [Dan] Jackson discrimination lawsuit). See also Leverett Dep. at 270-71 (Leverett heard about Everitt's comment from Plaintiffs Jesse Smith and Al Robinson). Plaintiff Roosevelt Leverett observed racially hostile conduct that included finding, in 1996, a stuffed pair of pants and shirt hanging from a rack 18 to 20 feet from the floor in the battery charging area (the location "where everybody comes to charge their machines"). Leverett Dep. at 179-84. The effigy had a cardboard sign tied around it with the name Strawder Cooper, an African American supervisor at SuperValu, and additional words that Leverett thought said "nigger supervisor." Id. Leverett reported it to his immediate supervisor, but the effigy was not removed until three or four days later, "[long] enough for all the warehouse to see it." Id. In 1997, supervisor Doug Studley, who was warehouse manager at the time, addressed Leverett as "Buckwheat" in an area of the warehouse where there are "probably twenty-five or thirty people at any given time." Id. at 191-95. Leverett said that in 2007, Hightower told him supervisor Dave Brown had called Hightower a "strong buck." Id. at 250-52. Between 1997 and 2007, Leverett observed the word "nigger" written on a bathroom wall and on a rack in the baby food aisle, heard numerous racist jokes told in the break room, heard Caucasian employees refer to African American employees by derogatory terms like "coon," and saw swastikas drawn on the bathroom wall. Id. at 148-57, 167-71, 174-77. Plaintiff Clegg described at least twelve incidents in which, between 1990 and 2006, he either observed the word "nigger" written on a bathroom wall, locker, pallet, or warehouse racks or was called "nigger," "stupid ass nigger," or a similar pejorative. See R.92-1, at 2-3. In 2003 or 2004, Clegg saw the words "go back home, boy" written on Clegg's machine. Clegg understood this to be directed at all of SuperValu's African American employees and that it meant African Americans "[had] no place inside SuperValu." Clegg Dep. at 116-19. In another instance, Clegg saw the words "niggers don't belong here" written in black marker on the wall of a restroom stall. Id. at 77-96. Hightower cleaned the graffiti off the bathroom stall. Id. at 77-80. DISTRICT COURT DECISIONS SuperValu separately moved for summary judgment as to each plaintiff's claim of racial harassment under § 1981 and Ohio law. The district court applied Title VII standards in assessing whether the plaintiffs' individual allegations of racially harassing comments and graffiti constituted actionable harassment, see Noble v. Brinker Int'l, Inc., 391 F.3d 715, 720 (6th Cir. 2004), and granted summary judgment to SuperValu in a separate decision for each plaintiff. The district court noted that a prima facie case of hostile work environment under Title VII requires evidence demonstrating: (1) the plaintiff is a member of a protected group and (2) was harassed based on his protected status; (3) the harassment had the effect of unreasonably interfering with his work performance and created "an objectively intimidating, hostile, or offensive work environment;" and (4) "there exists some basis for liability on the part of the employer." See, e.g., R.99 (Hightower slip op.) at 30 (citing Gallagher v. C.H. Robinson Worldwide, 567 F.3d 263, 270 (6th Cir. 2009)).<3> SuperValu did not contest the first prong of the prima facie case, and the district court either found, or SuperValu did not contest, that each appellant met the second prong (harassment was based on race). See R.99 at 31-32; R.102 at 27-29; R.107 at 30-31; R.108 at 28-29 (eliminating consideration of "XXX" allegation but considering remaining allegation as based on race); R.109 at 21. The district court noted that the third prong encompasses both a subjective and objective component: the plaintiff must "subjectively perceive the environment to be abusive," and the harassment must be "severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive." See, e.g., R.99 at 33 (citing Gallagher, 567 F.3d at 273). The court concluded, for each appellant, that regardless of whether the plaintiff "subjectively found that the alleged incidents created a hostile work environment," he failed to create a material issue of fact with respect to the objective component of the third prong. Id. at 38; R.102 at 35; R.104 at 34; R.107 at 36; R.108 at 34; R.109 at 26. In analyzing the objective component of the third prong, the court considered the harassing incidents that each plaintiff said he either experienced personally or learned of from another employee, regardless of when the incident occurred. SuperValu had argued that some of the older incidents were unrelated to the later incidents and, therefore, should be excluded from consideration because they were not part of a continuous hostile work environment. The district court found no need to reach this "statute of limitations" argument, however, because the court concluded that each plaintiff failed to create a material issue of fact on the objective component of the third prong, even "assuming all of the alleged incidents did form one continuous hostile work environment." See R.99 at 31-32 n.17; R.102 at 28 n.13; R.107 at 31 n.19; R.108 at 28 n.16; R.109 at 21 n.12. The court stated that the conduct in each case, while "reprehensible," was not "sufficiently severe and pervasive, as a matter of law, to be said to have altered the conditions of [the plaintiffs'] employment." See R.99 at 38; R.102 at 35; R.107 at 36; R.108 at 34; R.109 at 26 (emphasis added). The court reached this conclusion by comparing the plaintiffs' allegations to the facts in four decisions of this Court: Jackson v. Quanex Corp., 191 F.3d 647, 651-55, 662 (6th Cir. 1999), in which this Court found actionable harassment based on a consideration of all the allegations, and three decisions where this Court found allegations of racial harassment not sufficiently severe or pervasive-Smith v. Leggett Wire Co., 220 F.3d 752, 760 (6th Cir. 2000), Kelly v. Senior Centers, Inc., 2006 U.S. App. LEXIS 3139 (6th Cir. Feb. 8, 2006), and Bourini v. Bridgestone/Firestone No. Am. Tire, 2005 U.S. App. LEXIS 5194 (6th Cir. Mar. 30, 2005). See R.99 at 34-37; R.102 at 31-34; R.107 at 33-36; R.108 at 31-34; R.109 at 23-26. The district court concluded that the allegations of three of the appellants "are closest in severity and pervasiveness to those in Bourini . . ., which the Sixth Circuit found to be insufficient to constitute discriminatory changes in the terms and conditions of employment." See R.99 (Hightower slip op.) at 37-38 (five incidents in seven years plus seeing word "nigger" on bathroom walls at least once a year for 20 years); R.102 (Bush slip op.) at 34-35 (seven incidents over more than 20 years); R.107 (Berryman slip op.) at 36 (15 incidents between 2000 and 2005 and two between 1989 and 1991). The court concluded that Lanton's allegations are "significantly less severe than those in Bourini" and that Smith's allegations were "far less severe" than those this Court found insufficient in Smith v. Leggett Wire, supra. R.109 (Lanton slip op.) at 26 (three incidents between 1988 and 1990 and other incidents that occurred at undesignated times); R.108 (Smith slip op.) at 34 (summarizing one 2005 incident). ARGUMENT The District Court Erred Because a Reasonable Jury Could Find Plaintiffs' Repeated Exposure to, and Awareness of, These Racially Offensive Remarks, Lyrics, Pictures, and Graffiti Created a Hostile Work Environment Under Title VII. A. The district court applied the wrong standard for claims of hostile work environment when it considered whether the plaintiffs' alleged racial harassment was sufficiently "severe and pervasive" as a matter of law, rather than whether the evidence would permit a reasonable jury to find the alleged incidents were "severe or pervasive." In two respects, the district court articulated the wrong legal standard for the objective component of a prima facie case of hostile work environment under Title VII. The court stated it was granting summary judgment because it "[could not] conclude that [the harassing conduct] is sufficiently severe and pervasive, as a matter of law, to be said to have altered the conditions of [plaintiffs'] employment." See, e.g., R.99 (Hightower slip op.) at 37 (emphasis added). To satisfy Title VII, however, the alleged hostile conduct need be only "severe" or "pervasive." Furthermore, to withstand summary judgment, a plaintiff need only demonstrate that a reasonable jury could find in the plaintiffs' favor, not that it must. The district court, by stating it was granting summary judgment because it could not find, as a matter of law, that the alleged hostile incidents met both components-severe and pervasive-placed on plaintiffs who seek to advance harassment claims an incorrect, heightened evidentiary burden. Title VII prohibits discrimination because of race with respect to an individual's "terms, conditions, or privileges of employment." 42 U.S.C. § 2000e- 2(a)(1). This provision "offers employees protection from a 'workplace [] 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.'" Barrett v. Whirlpool Corp., 556 F.3d 502, 514 (6th Cir. 2009) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted)); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). The district court in Barrett, like the district court here, had "described the relevant standard as severe 'and' pervasive, not severe 'or' pervasive." Barrett, 556 F.3d at 514. Correcting the district court on this point, this Court noted that Title VII's "severe or pervasive" standard "is properly considered in the disjunctive." Id. (citing Hawkins v. Anheuser-Busch, 517 F.3d 321, 333 (6th Cir. 2008) (noting that in Harris, 510 U.S. at 21, the Supreme Court "us[ed] the phrase 'severe or pervasive' as opposed to 'severe and pervasive';" other citation omitted)). See also Hostetler v. Quality Dining, 218 F.3d 798, 808 (7th Cir. 2000) ("Harassment need not be severe and pervasive to impose liability; one or the other will do."). This distinction is significant. As the Fifth Circuit has explained, a requirement that plaintiffs offer evidence that hostile conduct in the workplace was both severe and pervasive in order to have an actionable claim under Title VII would "impose[] a more stringent burden on the plaintiff than required by law." Harvill v. Westward Commc'ns, 433 F.3d 428, 435 (5th Cir. 2005). The Supreme Court has recognized that even "isolated incidents," if they are "extremely serious," can alter the terms and conditions of employment. See id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); see also Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) ("even one act of harassment will suffice [to create a hostile work environment] if it is egregious."); Lockard v. Pizza Hut, 162 F.3d 1062, 1072 (10th Cir. 1998) (single incident of physically threatening and humiliating conduct can be sufficient to create a hostile work environment for a sexual harassment claim). "[U]nder a conjunctive standard," however, "infrequent conduct, even if egregious, would not be actionable because it would not be 'pervasive.'" Harvill, 433 F.3d at 435. The district court erred on this critical point. The court's opinions note that SuperValu, in its motions for summary judgment for four of the five appellants, contended that "the incidents that arguably reflect racial animus were not severe and pervasive enough to alter the terms and conditions of [plaintiffs'] employment." See R.99 at 33; R.102 at 30; R.107 at 32; R.109 at 22 (emphasis added). In granting SuperValu's motions, the district court described the alleged harassing conduct in each case as "reprehensible," but then stated that the court "cannot conclude that [this conduct] is sufficiently severe and pervasive, as a matter of law, to be said to have altered the conditions of [plaintiffs'] employment." See R.99 (Hightower slip op.) at 37; R.102 (Bush slip op.) at 35; R.107 (Berryman slip op.) at 36; R.108 (Smith slip op.) at 34; R.109 (Lanton slip op.) at 26 (emphasis added). The court's phrasing of its conclusion suggests it may have been confused not only about the disjunctive nature of the "severe or pervasive" standard, but also about the parties' respective evidentiary burdens in the summary judgment context. To gain summary judgment, a moving party must demonstrate two things: that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law on those undisputed facts. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (citing Rule 56(c) of Federal Rules of Civil Procedure). To withstand summary judgment, on the other hand, a nonmoving party does not need to present evidence demonstrating it is entitled to judgment as a matter of law, but only that at least one material fact is in dispute. Thus, in a situation like this-a summary judgment motion in a harassment claim-a court may properly grant summary judgment only if, assuming plaintiff's proffered evidence is true, no reasonable jury could find that the alleged hostile conduct was either "severe" or "pervasive." Cf. Hawkins, 517 F.3d at 333 (summary judgment proper only where there is no legally sufficient evidentiary basis for a reasonable jury to find for the plaintiff); Jackson, 191 F.3d at 657-59 (same for judgment as a matter of law). The plaintiff does not need to establish that the hostile conduct was severe or pervasive as a matter of law, but only that a jury could reasonably reach that conclusion. The district court, by premising summary judgment on a conclusion that plaintiffs' alleged instances of racial harassment were not "severe and pervasive" "as a matter of law," applied an erroneously rigorous standard. B. A jury could find, on this record, that plaintiffs were subjected to an actionable hostile work environment based on their race. Applying the correct Title VII standard, plaintiffs' allegations set forth actionable claims of racial harassment because they satisfy the relevant considerations identified by the Supreme Court and this Court. First, as the district court noted, plaintiffs advancing a claim of racial harassment must demonstrate both a subjective and objective component. As the Supreme Court has explained, "The conduct at issue must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive." Harris, 510 U.S. at 21-22; Jackson, 191 F.3d at 658 (applying Harris standard to a claim of racial harassment). Second, relevant circumstances for the factfinder to consider include not only "the frequency of the discriminatory conduct," but also "its severity," "whether it is physically threatening or humiliating, or a mere offensive utterance," and "whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. The less severe a particular form of harassment, the more pervasive it must be to meet Title VII's threshold. The more severe the harassment, on the other hand, the fewer incidents needed to satisfy Title VII's objective "severe or pervasive" test. See Cerros v. Steel Technologies, 288 F.3d 1040, 1047 (7th Cir. 2002) (severity and pervasiveness are "to a certain degree, inversely related"); see also Green v. Franklin Nat'l Bank of Minn., 459 F.3d 903, 911 (8th Cir. 2006) ("even infrequent conduct can be severe enough to be actionable"). Conduct that is threatening is considered particularly severe. See Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909 (8th Cir. 2003) (racially hateful bathroom graffiti that amounted to a death threat aimed at plaintiff could be fairly characterized as severe). With respect to the "interference" consideration, a plaintiff does not have to be rendered unable to perform his job, nor does the plaintiff need to experience psychological harm, to establish the subjective component of the prima facie case. See Harris, 510 U.S. at 22; Gallagher, 567 F.3d at 273; Jackson, 191 F.3d at 666-67; Williams v. General Motors Corp., 187 F.3d 553, 556-68 (6th Cir. 1999) (harassment plaintiff not required to show she felt threatened or her work suffered to demonstrate subjective element, and failure to report incidents does not defeat subjective element). Third, the objective component of a hostile work environment claim, like the subjective component, is properly viewed from the perspective of a reasonable person in the plaintiff's position. See, e.g., Oncale, 523 U.S. at 81; EEOC Policy Guidance on Current Issues of Sexual Harassment ("The reasonable person standard should consider the victim's perspective and not stereotyped notions of acceptable behavior.") (3/19/90); Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) ("[W]e believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim."). Thus, the racially offensive terms and comments here are properly assessed from the perspective of an African American citizen, and must be viewed with an understanding of the historical significance that these terms carry. Finally, "[t]he court must consider the totality of the circumstances when determining whether, objectively, the alleged harassment is sufficiently severe or pervasive to constitute a hostile work environment." Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). The court must consider the work environment as a whole, not each harassing incident in isolation, Jackson, 191 F.3d at 660, and "offensive comments need not be directed at a plaintiff in order to constitute conduct violating Title VII." Id.; Moore v. KUKA Welding Sys., 171 F.3d 1073, 1079 (6th Cir. 1999) (allowing evidence of racial harassment directed at someone other than the plaintiff when the plaintiff knew a derogatory term had been used). With these considerations in mind, Title VII's standard of "severe or pervasive" is satisfied here. The summary judgment record demonstrates an on- going repetition of highly offensive racial insults-including the words "nigger," "Buckwheat," "boy," "monkey," and variations on these offensive racial pejoratives-spanning several decades and manifested in several different forms, including verbal insults, written graffiti, insulting caricatures, musical lyrics, and jokes. Much of this conduct occurred in public areas of the warehouse and, thus, was either actually seen by many employees or could have been seen by many employees, a circumstance that added to the severity of the conduct. Cf. Gallagher, 567 F.3d at 273 (conduct not directed at plaintiff nevertheless properly considered where, based on workplace configuration, plaintiff was unavoidably exposed to co-workers' insulting language and degrading conversations). Many of the comments were threatening in nature. Some of the offensive conduct was implicitly or explicitly endorsed by supervisors or union leaders. The facts in this case are, therefore, quite similar to those this Court found to be actionable in Jackson. Even if this Court were to conclude that the plaintiff in Jackson was exposed to, or aware of, a greater number of harassing incidents over a shorter timeframe than the incidents alleged by some of the plaintiffs here, this Court should still reverse the district court on the issue of "severe or pervasive." The frequency of the harassing conduct in Jackson does not "mark the boundary of what is actionable" hostile work environment under Title VII, see Harris, 510 U.S. at 22, and nothing this Court said in Jackson would support such a conclusion. Indeed, as noted above, even conduct that is "not frequent" can be severe enough to be actionable under Title VII. See Faragher, 524 U.S. at 788 (isolated incidents, if "extremely serious," could amount to a discriminatory change in the "terms and conditions of employment"); Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878, 884-85 (8th Cir. 2002); see also Rocha Vigil v. City of Las Cruses, 119 F.3d 871, 872-74 (10th Cir. 1997) (Lucero, J., dissenting from denial of reh'g en banc) (Supreme Court precedent does not require a "steady barrage" of racial slurs for harassment to be actionable under Title VII). The types of comments that were directed toward the plaintiffs here, and the racially hostile words that were used repeatedly in graffiti, jokes, and musical lyrics, are so extremely offensive that a jury could find even a few instances satisfy the "severe or pervasive" prong of a Title VII harassment claim. See, e.g., Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15-7 (2006) ("Examples of the types of single incidents that can create a hostile work environment based on race include: . . . an unambiguous racial epithet such as the 'N-word,' and a racial comparison to an animal."). As this Court has recognized, "[t]hat the word 'nigger is a slur is not debatable," "irrespective of its common usage and without regard for the race of those who use it," and no employer should tolerate its usage. NLRB v. Foundry Div., Alcon Indus., 260 F.3d 631, 635 & n.5 (6th Cir. 2001). Indeed, as other circuits have observed, the word is "[f]ar more than a 'mere offensive utterance;'" it "is pure anathema to African Americans." White v. BFI Waste Servs., 375 F.3d 288, 298 (4th Cir. 2004) (citing Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674-75 (7th Cir. 1993) ("Perhaps no single act can more quickly 'alter the conditions of employment and create an abusive working environment,' . . . than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates.")) (other citations omitted). See also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001); Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 860 (5th Cir. 1993) ("term 'nigger' is a universally recognized opprobrium, stigmatizing African-Americans because of their race"); Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) ("use of the word 'nigger' automatically separates the person addressed from every non-black person; this is discrimination per se."). This is so because the word "nigger" "evokes a history of racial violence, brutality, and subordination." See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) ("beyond question . . . use of the word 'nigger' is highly offensive and demeaning"). Some of SuperValu's African American employees were also referred to as "monkeys." Comparing African Americans to primates is akin to calling African Americans "niggers" and is "similarly odious." White, 375 F.3d at 298. In our nation's past, African-Americans have been referred to as, and treated like, subhumans and regarded as intellectually and culturally inferior.<6> In perpetuation of this historic racial prejudice, African Americans have been, and sometimes still are, referred to as "beasts," "gorillas," "apes," or "monkeys." See, e.g., Green, 459 F.3d at 911 (co-worker called plaintiff "monkey"); Webb v. Worldwide Flight Serv., 407 F.3d 1192, 1193 (11th Cir. 2005) (plaintiff called "nigger" and "monkey"); White, 375 F.3d at 297-98 (plaintiff called "nigger," "porch monkey," and "Mighty Joe Young"); Spriggs, 242 F.3d at 182-83 (plaintiff called "monkey," "dumb monkey," and "nigger"); Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (African American employees called "apes" or "baboons"), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Oates v. Discovery Zone, 116 F.3d 1161, 1175 (7th Cir. 1997) (Wood, J., concurring & dissenting in part) (picture of ape with plaintiff's name printed next to it posted for one week); Jeffries v. Metro-Mark, Inc., 45 F.3d 258, 260 (8th Cir. 1995) (plaintiff called a "monkey"); Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906, 910 (7th Cir. 1991) (African American workers called "nigger," "porch monkeys," and "baboons). Primate-based slurs are unambiguously racial in meaning, given that they are overwhelmingly directed toward African Americans as opposed to any other group. Such slurs are, moreover, without question demeaning and dehumanizing. As the Fourth Circuit explained in White, "To suggest that a human being's physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme." 375 F.3d at 298. The presence of such comments in the workplace can create an unlawful hostile work environment, even where the harassment does not include any express physical threats. [T]he fact that [the plaintiff] was never physically threatened does not defeat his hostile work environment claim. As this court held in Spriggs, some words are so offensive that, when uttered repeatedly, they can foster "an abusive working environment" even if they are not accompanied by threat of physical injury. . . . The presence of race- based physical threats undeniably strengthens a hostile work environment claim. The absence of such, however, is in no way dispositive, when there is sufficient evidence from which a reasonable jury could conclude that allegedly harassing conduct was otherwise "humiliating." Id. at 298 n.6 (citations omitted) (emphasis in original). Similarly, the term "boy" has been used throughout American history to demean African American men, and has historical roots as a racial epithet referring back to slavery. See Bailey v. USF Holland, 526 F.3d 880, 883 (6th Cir. 2008) (defendant offered workplace sensitivity training that "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"). In Betts v. Costco Wholesale Corp., 558 F.3d 461 (6th Cir. 2009), for example, this Court upheld a jury's finding that racial harassment was sufficiently severe or pervasive where a warehouse manager (whose first name was Phil) stated that he "felt like he was working on a plantation"-alluding to the large number of African Americans employed at the warehouse-after which a Caucasian supervisor began calling one of the plaintiffs "Phil's Boy" or "Phil's Houseboy." See id. at 464, 468-70.<7> "Buckwheat," which several plaintiffs reported being called, is another term that has been used to demean and insult African American men. See Richardson, 180 F.3d at 439; Boyd v. State Farm Ins. Co., 158 F.3d 326, 329 n.1 (5th Cir. 1998) (explaining that "Buckwheat" is the "stereotypical black character from the 'Our Gang' or 'Little Rascals' television series," but "in the context of employment discrimination law, the term . . . is generally considered to be a racial slur or epithet"); Daniels v. Essex Group, 937 F.2d 1264, 1274 (9th Cir. 1991) (court characterized "Buckwheat" as a "racial taunt" when co-workers used it as a nickname for an African American employee). The decisions on which SuperValu relied are not dispositive here. Two of the decisions-Kelly and Bourini-not only addressed incidents far less pervasive than what occurred here, they were also unpublished and, therefore, not binding on this Court. Smith was a wrongful discharge case where plaintiff argued that circumstantial evidence of a hostile environment was sufficient to prove he was terminated because of his race rather than for threatening to kill co-workers, as defendant had contended. 220 F.3d at 76 n.1. This Court ruled that Smith's circumstantial evidence could not establish pretext because four incidents of racial harassment in twenty years was not sufficiently severe or pervasive and the employer was not even aware of three of the four incidents. Thus, this Court in Smith was addressing the issue before it: whether the evidence was sufficient to demonstrate pretext. That question, and how this Court resolved it, simply does not provide a helpful inquiry or analysis in the present case, which does not involve pretext or termination. The plaintiffs here report that, for decades, racially charged terms- "nigger," "monkey," "boy," and "Buckwheat"-were present in SuperValu's workplace. Over the years, plaintiffs were variously called these terms, heard them in stories, jokes, and loud music, observed them repeatedly in graffiti throughout the warehouse, or were informed of such incidents by their co-workers. Some racial graffiti appeared as direct or implicit threats. See, e.g., supra at 4, 9-10 ("death to niggerz," "Niggers go home, Niggers you aren't wanted," and "You're not wanted here, you nigger"). Some hostile comments were either perpetrated or endorsed by supervisors or union officials. See, e.g., supra at 6, 9. Most occurred in areas open to all employees generally (e.g., bathrooms, employee break room, warehouse hallways, and public address system) and, thus, could be heard or seen by anyone passing by. On this evidentiary record, a reasonable jury could conclude not only that the plaintiffs were subjectively offended by these persistent racial pejoratives, but that any reasonable African American employee would be offended. The district court therefore erred in granting summary judgment. CONCLUSION Because a reasonable jury could find, on this evidence, that each of the appellants was subjected to a hostile environment that was objectively "severe or pervasive," we respectfully urge this Court to reverse the district court's rulings that appellants failed to create an issue of fact with respect to the objective component of their prima facie case of racial harassment. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _____________________________ SUSAN R. OXFORD Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(b) because this brief contains 6,895 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). ____________________________ Susan R. Oxford Attorney U.S. Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 Dated: August 30, 2010 CERTIFICATE OF SERVICE I hereby certify that on the 30th day of August, 2010, I filed and served the EEOC's amicus curiae brief via this Court's CM/ECF system on the following counsel of record: James R. Greene, III, Esq. Teresa D. Jones, Esq. James R. Greene, III & Associates Thompson Hine, LLP 120 West Second Street, Suite 900 2000 Courthouse Plaza, N.E. Dayton, Ohio 45402 Dayton, Ohio 45401-9901 Counsel for Plaintiffs-Appellants Counsel for Defendants-Appellees (937) 225-3991 (937) 443-6824 _________________________________ SUSAN R. OXFORD Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 *********************************************************************** <> <1> The EEOC takes no position on any other issue in this appeal. <2> "R." refers to the document number on the district court docket. <3> The district court noted that, although Gallagher involved a claim of sexual harassment, this Court applies the same legal standard to claims of workplace harassment based on race. See, e.g., R.99 (Hightower slip op.) at 30 n.16 (citing Ladd v. Grand Trunk Western R.R., 552 F.3d 495, 500 (6th Cir. 2009)). <4> At http://www.eeoc.gov/policy/docs/currentissues.html. <5> At http://www.eeoc.gov/policy/docs/race-color.html. <6> See, e.g., U.S. Const., Art. I § 2 cl.3 (quantifying enslaved African Americans, for representation purposes, as three-fifths of a person); Herbert Alptheker, Vol. I A Documentary History of the Negro People in the United States 58 (1951) (quoting George Lawrence, An Oration on the Abolition of the Slave Trade (N.Y. 1813)) ("[t]here was a time whilst shrowded in ignorance, the African was estimated no higher than beasts of burden"). <7> The Betts plaintiffs brought their claims under Michigan law and, as here, the court looked to Title VII standards for guidance. See 558 F.3d at 467.