No. 08-12199-U ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ DAVID W. CORBITT and ALEXANDER J. RAYA, JR., Plaintiffs-Appellants, v. HOME DEPOT USA, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Southern District of Alabama No. 1:06cv-860 The Honorable Callie V.S. Granade ____________________________________________ EN BANC BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS ____________________________________________ P. DAVID LOPEZ JENNIFER S. GOLDSTEIN General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E. Assistant General Counsel Washington, D.C. 20507 (202) 663-4733 Jennifer.goldstein@eeoc.gov Corbitt v. Home Depot USA, Inc.., No. 09-12199-U CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1-1, the following is a list of persons or entities that have an interest in the outcome of this appeal: Jeffrey W. Bennitt, Counsel for Plaintiffs-Appellants Jeff Bennitt & Associates, LLC, Counsel for Plaintiffs-Appellants David W. Corbitt, Plaintiff-Appellant Lorraine C. Davis, Acting Associate General Counsel, EEOC Equal Employment Opportunity Commission (EEOC), amicus curiae Jennifer S. Goldstein, Attorney, EEOC Honorable Callie V.S. Granade, U.S. District Judge, S.D. Ala. Edward G. Hawkins, Counsel for Plaintiffs-Appellants Hawkins Law Firm, LLC, Counsel for Plaintiffs-Appellants Cornelius R. Heusel, Counsel for Defendant-Appellee Home Depot USA, Inc., Defendant-Appellee Jones, Walker, Waechter, Poitevent, Carrère & Denègre, LLP, Counsel for Defendant-Appellee Joseph F. Lavigne, Counsel for Defendant-Appellee P. David Lopez, General Counsel, EEOC Honorable Bert W. Milling, Jr., U.S. Magistrate Judge, S.D. Ala. Alexander J. Raya, Jr., Plaintiff-Appellant Eric Schnapper, Counsel for Plaintiffs-Appellants The Home Depot, Inc., publicly traded company that owns 100% of Defendant- Appellee's assets Carolyn L. Wheeler, Assistant General Counsel, EEOC Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. _________________________ Jennifer S. Goldstein TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT The district court and appellate court majority erred in examining Cavaluzzi's conduct in isolation, rather than cumulatively and in its social context, when it held that conduct insufficiently severe or pervasive. . . . . 2 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997). . . . . . . . . . . 5 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990). . . . . . . . . 4 Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). . . . . . . . . . . . . . .4 Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th Cir. 1995). . . . . . . . 13 Chapman v. AI Transp., 229 F.3d 1012 (11th Cir. 2000) (en banc) . . . . . . 9 Corbitt v. Home Depot USA, Inc., 589 F.3d 1136 (11th Cir. 2009), vacated, 598 F.3d 1259 (11th Cir. 2010) . . . . . . . . . . . . 4-6, 9, 12 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) . . . . . . . 6, 14 Ellison v. Brady, 924 F.2d 872 (9th Cir.1991) . . . . . . . . . . . . . . . 7, 13 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . 10 Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (11th Cir. 2000) . . . . . . . . . 12 *Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . 2, 7, 14-15 Herrera v. Lufkin Indus., 474 F.3d 675 (10th Cir. 2007) . . . . . . . . . . . . 5 Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Lauderdale v. Texas Dep't of Criminal Justice, 512 F.3d 157 (5th Cir. 2007) .6, 7 *Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) (en banc). . . . . . . . . . . . . . . . . . 8-11, 13-14 Mize v. Jefferson City Bd. of Educ., 93 F.3d 739 (11th Cir. 1996). . . . . . 4 *Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). . . 2, 7-8, 12-13 *Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010) (en banc). . . . . . . . . . . . . . . . . . 1, 3, 5-6, 12 STATUTE AND RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . .1 Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 11th Cir. R. 35-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 MISCELLANEOUS A.K. Gordon et al., Innocent Flirting or Sexual Harassment? Perceptions of Ambiguous Work-Place Situations, 28 Rep. Res. in Soc. Psychol. 47 (2005). . 13 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC) is the agency charged by Congress with the interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This Court has granted en banc review in this case and asked for briefing on the following question: In light of the significance of analyzing facts in the totality of circumstances, as emphasized by Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010) (en banc), could a reasonable jury find that Cavaluzzi altered the terms, conditions, or privileges of either Corbitt's or Raya's employment by conduct so severe or pervasive that it created an environment that a reasonable person would find hostile or abusive? Because resolution of this issue will affect the EEOC's enforcement efforts, the EEOC presents its views to the Court. See Fed. R. App. P. 29(a); 11th Cir. R. 35-9. STATEMENT OF THE ISSUE Whether the district court and appellate panel majority erred in examining Cavaluzzi's conduct in isolation, rather than cumulatively and in its social context, when it held that conduct insufficiently severe or pervasive as a matter of law. SUMMARY OF ARGUMENT In Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 (11th Cir. 2010) (en banc), this Court reiterated two basic principles for a court or jury considering whether alleged harassment has created a hostile work environment. Reeves held that workplace conduct must be viewed in its social context, and the conduct must be considered cumulatively, not in isolation. The district court and panel majority strayed from these principles when they assessed the evidence presented. The courts focused on comments that could be considered complimentary, and downplayed comments suggesting sex, asking about plaintiffs' sex lives, encouraging pornography viewing, and talking about the color of a plaintiff's pubic hair. The courts focused on the possible innocuousness of a hug, and ignored how tightly the harassing supervisor hugged the plaintiffs, or where he placed his right hand while hugging. Focusing on discrete incidents, and drawing inferences in favor of the moving party, place the decisions in conflict with the directive of Reeves. Had the courts considered the incidents in light of the totality of the circumstances, summary judgment would not have been granted. ARGUMENT The district court and appellate court majority erred in examining Cavaluzzi's conduct in isolation, rather than cumulatively and in its social context, when it held that conduct insufficiently severe or pervasive. Title VII prohibits sexual harassment that "is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). In this case, both the district court and the panel majority erred in holding, on summary judgment, that the harassment of Corbitt and Raya was insufficiently severe or pervasive to comprise a hostile work environment. It is the EEOC's view that, in rejecting the harassment claims, the courts failed to apply basic principles of hostile work environment analysis, as set out by Supreme Court and Eleventh Circuit precedent. The Supreme Court has explained that the severe or pervasive inquiry "requires careful consideration of the social context in which particular behavior occurs and is experienced," since the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words or the physical acts performed." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998); see also Reeves v. C.H. Robinson Worldwide, 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (quoting Oncale); id. at 807 (workplace conduct must be viewed "in its social context"). In addition to considering the social context, a court must also look at the context of challenged conduct in light of what has preceded it - the situational context - for "workplace conduct cannot be viewed in isolation, but rather is to be viewed cumulatively." Id.; see also id. at 808 (evidence "is considered both cumulatively and in the totality of the circumstances"). The district court and panel majority lost sight of these basic principles when they examined the evidence of Cavaluzzi's sexually-explicit comments and conduct. To be sure, Cavaluzzi made other comments that, in some situations, could be considered simply complimentary, such as remarking on how "cute" Corbitt was, and remarking to Raya that he hoped he was "wearing those pants that I like." In the context of the sexual suggestiveness of other comments, however, these milder comments could fairly be understood, by a reasonable person in plaintiffs' position, to be sexually suggestive themselves. See Reeves, 594 F.3d at 808 (evidence of harassment considered both cumulatively and in totality of circumstances); see also Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) ("A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario."). The panel majority similarly dismissed the frequent telephone comments on the ground they were in "most circumstances" not highly objectionable and "could best be characterized" as compliments. Corbitt v. Home Depot USA, Inc., 589 F.3d 1136, 1153 (11th Cir. 2009), vacated, 598 F.3d 1259 (11th Cir. 2010). Even if in "most circumstances" a comment about pants would be construed as a compliment, the overall context of Cavaluzzi's relationship with the plaintiffs points in a more sexually suggestive direction. By picking among possible characterizations of the comments, the majority drew its own inferences from the evidence before it, rather than leaving that task to the finder of fact. A court should not draw inferences against a non-moving party - generally a plaintiff in sexual harassment cases - because of the rule that "all inferences drawn from the evidence must be viewed in the light most favorable to the non-moving party." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996); see also Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989) ("If a reasonable fact finder could draw more than one inference from the facts . . . then the court should refuse to grant summary judgment."). A court should not determine whether it finds the conduct sufficiently severe or pervasive, but whether a reasonable jury could so find. Allen v. Tyson Foods, 121 F.3d 642, 647-48 (11th Cir. 1997); see also Herrera v. Lufkin Indus., 474 F.3d 675, 680 (10th Cir. 2007) (severe and pervasive evaluation "is particularly unsuited for summary judgment because it is quintessentially a question of fact"). The analysis by the district court and panel majority of Cavaluzzi's physical contact with plaintiffs was similarly flawed, for the courts looked at the physical contact in isolation. Cf. Reeves, 594 F.3d at 807 ("workplace conduct cannot be viewed in isolation, but rather is to be viewed cumulatively, and in its social context"). The district court, considering the incident in which Cavaluzzi hugged Raya with his left arm and placed his right hand on Raya's thigh, stressed that "by itself" it was not severe. Doc. 141 at 25. The panel majority focused on the hugging part of the contact and deemed it "objectively innocuous." Corbitt, 589 F.3d at 1154. Even looking at the hug alone, there was evidence it was not innocuous, for Raya explained that "it's not like he just put it on my - on my shoulder and took it off. He put it on my shoulder [and] left his arm on my shoulder." Doc. 111 at 216-17. Home Depot itself recognizes that prolonged touching, as was true of Cavaluzzi's hug, can make an employee feel uneasy: a human resources official explained that "Home Depot teaches hugging as hugging and release" precisely to avoid discomfort by its employees. Doc. 93, Att. 2 at 95. In any event, Cavaluzzi did not simply hug Raya with his left arm; he put his left arm on Raya's shoulder while placing his right hand on Raya's thigh, a fact the panel majority only mentioned in a footnote. Corbitt, 589 F.3d at 1154 n.11. The panel majority stated it was considering incidents such as these "in context with all of the conduct at issue," id. at 1154, but its analysis does not reflect the purported consideration of the incidents in context. Moreover, the majority did not simply isolate its assessment of the different parts of one incident from each other, but also isolated its assessment of each incident from another. See id. at 1155 ("some of Cavaluzzi's comments were offensive; but some were not."). In so doing, the majority erred. Cf. EEOC v. Sunbelt Rentals, 521 F.3d 306, 318 (4th Cir. 2008) ("Any of the above incidents, viewed in isolation, would not have been enough to have transformed the workplace into a hostile. . . one," but "[w]e cannot . . . view the conduct without an eye for its cumulative effect."). The panel majority also erred by downplaying the import of the frequency of Cavaluzzi's conduct. According to the majority, the frequency of Cavaluzzi's conduct "'does not compensate for the absence of other factors,'" namely that, in its view, Cavaluzzi's conduct was insufficiently severe. Corbitt, 589 F.3d at 1155. As a matter of law, "[e]ither severity or pervasiveness is sufficient to establish a violation of Title VII." Reeves, 594 F.3d at 808. Where harassing conduct is as frequent as it was here, occurring several times a week, every week, the conduct need not be as severe to alter the terms and conditions of employment. The severe or pervasive test "is stated in the disjunctive." Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007). "An egregious, yet isolated, incident can alter the terms, conditions, or privileges of employment and . . . [t]he inverse is also true: Frequent incidents of harassment, though not severe, can reach the level of 'pervasive.'" Id.; see also Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) ("the required showing of severity . . . varies inversely with the pervasiveness or frequency of the conduct"). The rationale for this rule is reflected in Corbitt's testimony in this case, for he explained that although he found the massages and other public conduct embarrassing and offensive, "[i]n fact, the - the incessant over and over continuance of the calls is what got to me more." Doc. 95 at 102-02. The fact that many of Cavaluzzi's suggestive comments contained some ambiguity should not have led the panel majority to leave them out of the severe or pervasive calculus. In Harris, for example, much of the challenged conduct consisted of general "sexual innuendos" and "sexual innuendos about Harris' and other women's clothing." 510 U.S. at 19. The Court nonetheless remanded the case for a finding on plaintiff's sexual harassment claim, based on all the facts and circumstances. And in Oncale, the Court stressed that the harassment inquiry "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." 523 U.S. at 81. Given the social context of plaintiffs' workplace, and the more explicit sexual comments and conduct that accompanied the other highlighted comments, plaintiffs could reasonably have understood all Cavaluzzi's actions as sexually suggestive.<1> It is certainly true that where all the challenged conduct is highly ambiguous, even when considered in context, a different outcome might be appropriate. A perception of that kind of ambiguity influenced this Court's en banc decision in Mendoza, 195 F.3d 1238, a case with facts very different from those present here. Mendoza centered on what the plaintiff perceived to be her supervisor's persistent following of her and staring at her, and her sense that he occasionally looked at her groin and sniffed. This Court emphasized the plaintiff's admission that her alleged harasser "never said anything to her during what she perceived to be the sniffing nor the looking up and down." Id. at 1243. The Court contrasted the case with cases in which staring was accompanied by other conduct, such as commenting on plaintiff's body, some overt sexual remarks, comments on plaintiff's clothing, stroking plaintiff's hair, massaging plaintiff's back. Id. at 1249-50 n.8. Two concurring judges wrote separately to underscore their concern with holding employers liable based on wholly ambiguous conduct by a supervisor. Id. at 1254 (Edmondson, J., concurring) (noting ambiguity of challenged conduct and that sexual content was "not obvious"); id. at 1255 (Carnes, J., concurring) (expressing concern about relying on plaintiff's "subjective interpretations of ambiguous conduct" and taking a sexual harassment case to a jury "on the basis of nebulous impressions"). Mendoza was a unique case, factually, because it consisted entirely of ambiguous conduct. The alleged harasser made no suggestive comments to the plaintiff, who alleged "a single instance of slight physical contact." Mendoza, 195 F.3d at 1249. Mendoza's unique facts place it in a category into which few cases fall. The majority here suggested otherwise, declaring it only "arguable" that the conduct was more severe than in Mendoza. Corbitt, 589 F.3d at 1155. But the Mendoza Court concluded the conduct was not severe only because it thought all of the conduct was wholly ambiguous. See Chapman v. AI Transp., 229 F.3d 1012, 1034 n.25 (11th Cir. 2000) (en banc) (Mendoza was concerned about dangers of "purely subjective, conclusory impressions of a litigant that are devoid of any objective facts"). Here the sexually suggestive comments Cavaluzzi made to plaintiffs and his inappropriate touching of them plainly distinguish this case from one based solely on "nebulous impressions." It is precisely the sexually-charged comments, the comments about plaintiffs' bodies, the questions about their sex lives, the stroking of their hair, massaging their neck and back, and placing a hand on Raya's thigh that remove Cavaluzzi's conduct from the zone of ambiguity. Cf. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 506, 509 (11th Cir. 2000) (harassment severe or pervasive where conduct included repeated attempts to massage plaintiff's shoulders against her wishes, standing so close that his body parts touched hers, comments about her body, and questions about her sex life). Moreover, the rationale for rejecting harassment claims based solely on highly ambiguous conduct is inapplicable here. Judge Carnes, in his concurrence, looked at the "nebulous" conduct from the perspective of the employer, and expressed concern about placing an employer "under pain of legal sanctions to make sure that its supervisors never inflect their voice or posture in such a way that a woman might think they were 'coming on' to her. . . that supervisors never look or stare at a subordinate whom they are supervising in such a way that she might think they were 'coming on' to her." Mendoza, 195 F.3d at 1255-56 (Carnes, J., concurring). Certainly there is merit to this concern, for the Supreme Court has emphasized that the "'primary objective'" of Title VII, "like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm." Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). Mendoza reflects the concern that it would be difficult for an employer to devise an anti-harassment policy warning employees about engaging in wholly ambiguous conduct, especially where it is the type of conduct in which supervisors normally engage (e.g.., watching subordinates). The unique facts of Mendoza are not the facts of this case, however, and the concerns underlying Mendoza are absent here. Indeed, looking at this case from the perspective of the employer, the evidence shows that Cavaluzzi engaged in precisely the kind of behavior about which Home Depot warned its employees. Home Depot, in its anti-harassment policy, "defines sexual harassment as any unwelcome or unsolicited behavior of a sexual nature," which includes "unwelcome verbal, physical, or non-verbal conduct of a sexual nature or with sexual overtones such as hugging, . . . touching, or standing too close." Doc. 94, Att. 4 at 3. According to Calhoun, Home Depot teaches its employees to "hug[] and release," and Calhoun herself observed conduct she thought "inappropriate." Doc. 93, Att. 2 at 95-96. Cavaluzzi made unwelcome, explicitly sexual comments, hugged plaintiffs for an uncomfortably long time and uncomfortably closely, and touched plaintiffs in ways they found offensive. Thus the concerns about an employer blindsided by wholly - and solely - ambiguous conduct, as was true in the unique factual context of Mendoza, are not present here. Of course, the EEOC does not mean to suggest that ambiguous conduct should be excluded from a harassment analysis. In context, a plaintiff should be able to point to "tone of voice, body language, and other non-verbal, nontouching modes of signaling," Mendoza, 195 F.3d at 1255 (Carnes, J., concurring), and give those modes of signaling meaning. Indeed, the EEOC questions whether the majority decision in Mendoza itself went too far in isolating each piece of evidence, taking it out of context, and declining to consider reasonable inferences that could be drawn from the challenged conduct. See id. at 1257-69 (Tjoflat, J., dissenting); id. at 1269-78 (Barkett, J., dissenting). In any event, it is now well-settled that context is critical to understanding whether a plaintiff has been subjected to disadvantageous terms and conditions of employment. Oncale, 523 U.S. at 81; Reeves, 594 F.3d at 807. The Mendoza decision therefore cannot excuse the panel majority's failure to consider Cavaluzzi's conduct in its context. It is unclear whether the majority downplayed much of the evidence because it believed plaintiffs were unduly sensitive to a man's sexual advances. Corbitt, 589 F.3d at 1153 n.11 (plaintiffs perhaps found "certain behavior sexual . . . because it was coming from a gay man"); id. at 1154 (Raya would not have thought anything of hug by "a heterosexual man"); id. at 1155 (plaintiffs "seem to suggest that the fact that the touchings were same-sex makes them somehow more severe. This is not the law.").<3> The majority is correct that the same legal standard applies to harassment cases regardless of the gender of harasser and victim, but the Supreme Court has instructed that courts and juries consider a particular victim's experience. Oncale, 523 U.S. at 81 (objective severity "should be judged from the perspective of a reasonable person in the plaintiff's position"). Biases or particular sensitivities should not color the reasonable person analysis, but there may be differences that a court or jury can factor into its assessment of the conduct. Compare Baskerville v. Culligan Int'l, 50 F.3d 428, 431 (7th Cir. 1995) (no hostile work environment where "only a woman of Victorian delicacy" would find comments offensive), with Ellison, 924 F.2d at 878 ("A complete understanding of the victim's view requires . . . an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. . . .Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault."), and Mendoza, 195 F.3d at 1268 & n.11 (Tjoflat, J., dissenting) (expressing concern courts "will miss the more subtle forms of sex discrimination" and "'ignore the experiences of women,'" instead of understanding "the power that these 'little' sexual offenses, when considered collectively, can have") (quoting Ellison). It may be the case that the gender of the person making comments and touching a co-worker affects that co-worker's perception of the conduct, even where the co-worker holds no particular biases and is not particularly sensitive. See A.K. Gordon et al., Innocent Flirting or Sexual Harassment? Perceptions of Ambiguous Work-Place Situations, 28 Rep. Res. in Soc. Psychol. 47, 53 (2005) (finding that male and female participants in social science survey reacted differently to examples of ambiguous situations depending on gender of perpetrator and victim). The panel majority therefore erred in discounting much of the challenged conduct. Finally, the district court made two additional errors in its assessment of the evidence presented. First, the court erred in stressing there was no evidence the conduct was physically threatening. Harris and Mendoza instruct that what must be considered is whether the conduct "is physically threatening or humiliating." Harris, 510 U.S. at 23; Mendoza, 195 F.3d at 1246. Cavaluzzi's conduct was not threatening to plaintiffs, but the court ignored evidence it was humiliating. Cavaluzzi massaged plaintiffs, hugged them tightly, ran his hand through their hair, and made comments in front of their co-workers and customers. Raya was teased by his peers because of Cavaluzzi's conduct. Where conduct humiliates a plaintiff, the conduct need not also be physically threatening. See Sunbelt Rentals, 521 F.3d at 318 ("Names can hurt as much as sticks and stones, and the Supreme Court has never indicated that the humiliation so frequently attached to hostile environments need be accompanied by physical threat or force."). Here a jury certainly could find Cavaluzzi did not treat plaintiffs with professional respect, but instead humiliated them with his sexual suggestiveness. The court also erred in holding there was no evidence the conduct affected plaintiffs' job performance. To show interference with job performance, an employee "'need not prove that his or her tangible productivity has declined as a result of the harassment.'" Harris, 510 U.S. at 25 (Ginsburg, J., concurring). It suffices that a reasonable person would find the harassment made "it more difficult to do the job." Id. Here plaintiffs testified that several times a week, every week, they had to listen to suggestive comments. When they saw Cavaluzzi in person, he publicly treated them as playthings, rather than as professionals. From this evidence, a jury could find an unreasonable interference with plaintiffs' job performance.<4> In sum, looking at Cavaluzzi's conduct in its context and cumulatively, an objectively reasonable person in the position of Corbitt and Raya could find it sufficiently severe or pervasive to create an abusive working environment. Whether Cavaluzzi's conduct in fact was sufficiently severe or pervasive to comprise an abusive work environment therefore should be decided by a jury, and not by the district court on summary judgment. CONCLUSION We urge this Court to reverse the judgment of the district court. Respectfully submitted, P. DAVID LOPEZ CAROLYN WHEELER General Counsel Assistant General Counsel LORRAINE C. DAVIS ________________________ Acting Associate General Counsel JENNIFER S. GOLDSTEIN, Attorney CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and is 15 pages long, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). s/Jennifer S. Goldstein Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that I mailed two copies of this brief by first-class mail, postage prepaid, on this 22nd day of April, 2010, to the following: Edward G. Hawkins Hawkins Law Firm, LLC 306 St. Francis Street Mobile, Alabama 36602 Jeffrey W. Bennitt Jeff Bennitt & Associates, LLC P.O. Box 383063 Birmingham, Alabama 35238-3063 Professor Eric Schnapper University of Washington School of Law P.O. Box 353020 Seattle, WA 98195 Cornelius R. Heusel Joseph F. Lavigne Jones, Walker, Waechter, Poitevent, Carrère & Denègre 201 St. Charles Avenue New Orleans, Louisiana 70170 s/ Jennifer S. Goldstein Jennifer S. Goldstein EEOC *********************************************************************** <> <1> The Oncale Court observed that a football player's work environment would not be abusive if his coach smacks him on buttocks as he runs onto the field, but the same behavior might be experienced as abusive by the coach's secretary back at the office. 523 U.S. at 81. So too might compliments about a man's pants and questions about the type of underwear he wears be experienced one way among editors at a men's fashion magazine, but altogether differently at Home Depot. <2> Just as looking at actions and comments in context can illuminate how a reasonable person could perceive them as sexually harassing, so too can the larger context reveal that a plaintiff was not subject to disadvantageous terms and conditions of employment. See, e.g., Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 584 (11th Cir. 2000) (comment from alleged harasser that plaintiff was "looking very beautiful" was not offensive where it was the only comment of its kind in six months, was unaccompanied by any kind of sexual gesture, and where plaintiff did not perceive he was leering at her); id. at 584-85 (although supervisor called plaintiff at home at night and sometimes asked her personal questions during the calls, he never made sexually explicit remarks or innuendos). <3> The EEOC's review of the record indicates plaintiffs did not argue male-on-male advances are inherently more severe, nor were plaintiffs particularly sensitive to a man's advances. Corbitt stated he did not let Cavaluzzi massage his neck because "I'm married and I don't like men." Doc. 95 at 73. This evidence shows simply that Corbitt found the advances unwelcome. There was evidence Raya was upset when he heard co-workers calling him "Lenny's bitch," Doc. 110 at 46, but the power of that word to denigrate its target has been noted by this Court. Reeves, 594 F.3d at 813 ("Calling a man a 'bitch' belittles him . . . because it . . . implies that [he] is a lesser man."). <4> Even if the conduct did not interfere with plaintiffs' job performance, that fact would not undermine their harassment claim, for while all relevant factors may be taken into account, "no single factor is required." Harris, 510 U.S. at 23.