Jordan v. Alternative Resources Corp., 4th Cir. Brief as amicus July 14, 2005 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ No. 05-1485 ____________________________________________ ROBERT L. JORDAN, Plaintiff-Appellant, v. ALTERNATIVE RESOURCES CORP., et al. Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the District of Maryland _______________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________________ ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7040 Washington, DC 20507 202-663-4737 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3 1. Proceedings . . . . . . . . . . . . . . . . . . . . . .3 2. Statement of Facts. . . . . . . . . . . . . . . . . . .4 3. District Court Decision . . . . . . . . . . . . . . . .6 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 I. It Was Not Unreasonable for Jordan to Believe that Farjah's Highly Offensive Racist Statement, When Augmented by Coworkers' Reports that Farjah Had Made Similarly Offensive Statements Many Times Before, Was Creating a Hostile Environment for African American Employees. . . . . . . . . . . . . . . . . . .8 II. An Employee Is Protected by § 704(a) When He Complains to Management about Significantly Offensive Conduct that, if Repeated Often Enough, Would Constitute a Hostile Work Environment in Violation of § 703(a). . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187 (7th Cir. 1994) 11, 17 Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984); . . . . . . 9 Breeden v. Clark County School District, No. 99-15522, 2000 U.S. App. LEXIS 17564 (9th Cir. July 19, 2000) . . . . . . .20 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . .16 Carter v. Rosenberg & Estis, P.C., 77 Fair Empl. Prac. Cas. (BNA) 925 1998 U.S. Dist. LEXIS 4010 (S.D.N.Y. Mar. 31, 1998) . . . . . . .18 Clark County School District v. Breeden, 532 U.S. 268 (2001) . . . 20-21 Dailey v. Park Place Airport Parking, L.L.C., 2000 WL 641203 (E.D. Mo. May 16, 2000) . . . . . . . . . . . . . . . . . . . . .14 De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293 (2d Cir. 2002) .16 Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) . . . . . .15 EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) . . . . . . . . . . .13 EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993) . . . . . . . . .12 Faragher v City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . .14 Foster v. Time Warner Entertainment Co., 250 F.3d 1189 (8th Cir. 2001) . 13 Goos v. National Association of Realtors, 715 F. Supp. 2 (D.D.C. 1989) . 14 Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 4 Haugerud v. Amery School District, 259 F.3d 678 (7th Cir. 2001) . . 15 Jeffries v. Metro-Mark, Inc., 45 F.3d 258 (8th Cir. 1995) . . . . . . 9 Little v. United Technologies, 103 F.3d 956 (11th Cir. 1997) . . . . .19 Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976) . . . . . . . . . . 9 Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994) . . . . . . . . . . . . . .17 NLRB v. Scrivener, 405 U.S. 117 (1972) . . . . . . . . . . . . . . . .12 Reed v. A. W. Lawrence & Co., 95 F.3d 1170 (2d Cir. 1996) . . . .11, 17 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . . .12 Schwabacher v. U.S., 334 U.S. 182 (1948) . . . . . . . . . . . . . . .13 Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987) . . . . . . . . .15 Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998) . . . . . . . . . .12 Van Dusen v. Barrack, 376 U.S. 612 (1964) . . . . . . . . . . . . . .13 White v. BFI Waste Services, LLC, 375 F.3d 288 (4th Cir. 2004) . . . . 9 STATE CASES Harris v. State, 46 So. 2d 91 (Miss. 1950) . . . . . . . . . . . . . .10 STATUTES AND REGULATIONS 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 1343(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964 . . . . . . . . .1, 14, 17-18 § 703(a), 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . .11 § 704(a), 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . .passim 29 C.F.R. §1604.11(f) . . . . . . . . . . . . . . . . . . . . . . . .15 MISCELLANEOUS EEOC, Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 Fair Empl. Prac. Manual 405:7651 (adopted June 18, 1999) . . . . . . . . . . . . . . . . . . . . .15 Jennifer M. Russell, On Being a Gorilla in Your Midst, or, the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259 (1993) . . . . . . . . . . . . . . . . . . . . . . .10 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to interpret, administer and enforce Title VII of the Civil Rights Act of 1964 and other federal laws prohibiting employment discrimination. Each of the laws enforced by the Commission also makes it unlawful for a covered employer to retaliate against persons for opposing conduct that they believe violates these laws. The anti-discrimination laws rely heavily on victims of discrimination for their enforcement: employees experiencing discrimination are expected to complain to management, file charges with the Commission, and bring private lawsuits to enforce their rights. The prohibitions against retaliation are therefore central to achieving the purposes of the laws. If retaliation were permitted, employees would not expose and oppose unlawful discriminatory activity, and the statutes' purposes would go unfulfilled. Determining what employee activity is protected against retaliation can be particularly difficult when the conduct the employee is protesting is the kind of significantly offensive harassment that constitutes, or contributes to, an unlawful hostile environment. Since this case addresses that significant issue, the Commission offers its views. STATEMENT OF JURISDICTION The district court had subject matter jurisdiction over Robert L. Jordan's Title VII claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). The district court entered an order on March 30, 2005, dismissing all of Jordan's claims, and an order on April 26 directing the clerk to close the case. Jordan filed a timely notice of appeal on April 28. This court therefore has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether Jordan could reasonably believe that Farjah's racist statement, when augmented by coworkers' reports that Farjah had made similar racist statements in the workplace many times before, was creating a racially hostile environment for African American employees. 2. Whether an employee is protected from retaliation by § 704(a) of Title VII when he complains to management about racist conduct in the workplace that, if repeated often enough, would constitute a hostile work environment in violation of § 703(a). STATEMENT OF THE CASE 1. Proceedings In February 2004, after filing a charge of discrimination with the EEOC and the Montgomery County Office of Human Rights and receiving a right-to-sue notice, Jordan sued the Alternative Resources Corporation ("ARC") and the International Business Machines Corporation ("IBM") in the Circuit Court of Montgomery County alleging violations of Title VII, 42 U.S.C. § 1981, and state and county law. JA 10-18. ARC and IBM removed the case to the United States District Court for the District of Maryland (Chasanow, J.) in April 2004, and IBM then moved to dismiss the complaint for failure to state a claim. JA 4, 19. In early July, Jordan sought leave to amend his complaint. JA 76-87. On March 30, 2005, the district court entered an order denying Jordan's motion for leave to amend (with prejudice as to some claims, and without prejudice as to others) and granted defendants' motion to dismiss. JA 7, 253-82. When Jordan failed to seek leave to amend his complaint within the time allowed by the court, the court entered an order on April 26 directing the clerk to close the case. JA 7, 285-86. 2. Statement of Facts<1> Robert L. Jordan, an African American, was hired by Alternative Resources Corporation ("ARC"), a staffing firm, as a network technician in December 1998. He was placed by ARC at International Business Machines Corporation ("IBM"). Jordan was hired, paid and fired by ARC, but he worked at IBM, and IBM controlled his day-to-day employment. JA 12, 15, 253. On October 23, 2002, Jordan and Jay Farjah, a coworker employed by IBM, were standing next to each other at work watching a television report on the recent capture of the two African American suspects in the D.C. sniper case. Farjah stated: "They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." JA 13. Jordan was offended by the statement. JA 13. He immediately discussed it with several of his coworkers, and at least two of his coworkers told him that Farjah had made similar offensive comments many times before. JA 81. Both ARC and IBM have policies requiring that employees report to management any conduct they perceive as discriminatory. JA 81. Jordan believed that Farjah's repeated offensive statements created an unlawful hostile environment for African American employees, or at a minimum would create such an environment if the comments continued. JA 81. Later that day, Jordan reported Farjah's racist statement to two of his IBM managers: Mary Ellen Gillard, his first-line supervisor; and C. J. Huang, another IBM supervisor. JA 13. Huang expressed skepticism about Jordan's complaint and asked him whether he had considered the impact his complaint could have on Farjah. Huang also suggested that Farjah might have been joking. JA 13. Huang and Gillard both told Jordan to submit his complaint in writing, and he did so. JA 82. Jordan also reported Farjah's statement to Sheri Mathers, an ARC manager, and discussed the incident with her in detail. JA 14. At some point Gillard reported back to Jordan that she had talked with Farjah. She said that Farjah had denied making the statement Jordan reported, but had admitted saying: "They should put those two monkeys in a cage." JA 82. When Gillard failed to offer any further remedy, Jordan told her he wanted to pursue his complaint with Ron Thompson, IBM's site manager. JA 82. After Jordan complained about Farjah's statement, IBM managers began to retaliate against him. JA 14. When Jordan started working at IBM, he asked to start his workday at 6:30 a.m. so he could leave in time to pick up his son from school. ARC and IBM granted this request, and 6:30 a.m. had always been Jordan's starting time. JA 14. Shortly after Jordan complained, Gillard directed him to start his workday at 9:00 a.m. instead of 6:30 a.m. Jordan told Gillard the later starting time would make it impossible for him to pick up his son at school, but, without giving any reason for the alteration, she insisted that he make the change. JA 14. Gillard also unfairly gave Jordan additional assignments. JA 14. In addition, at an office Thanksgiving party, Huang made a crude, derogatory remark and gesture to Jordan, which were witnessed by coworkers. JA 14. On November 21, 2002, four weeks after Jordan initially complained, Mathers called Jordan on the phone and fired him. She told him he was being fired because he was "disruptive," because his position "had come to an end," and because the IBM people "don't like you and you don't like them." JA 14. 3. District Court Decision The district court noted that a plaintiff alleging that he was retaliated against for opposition to an unlawful employment practice must at least have had a reasonable good-faith belief that the conduct he opposed violated Title VII. JA 261. The court ruled that Farjah's statement, even when augmented by the reports of Jordan's coworkers, was not severe or pervasive enough to constitute an actionable hostile environment, nor was it reasonable for Jordan to believe it did. JA 262-64. Accordingly, the court held, Jordan's complaint about Farjah's comment was not protected under § 704(a). JA 261-64. SUMMARY OF ARGUMENT There are two reasons why the district court should have denied defendants' motion to dismiss. First, calling black persons "black monkeys" and talking about putting them in a cage with "black apes" to be raped by the black apes is a racist statement that perpetuates racist stereotypes of African Americans, denigrates African Americans as sub-human, and creates or contributes to an unlawful racially hostile environment. Once Jordan learned from coworkers that Farjah had made similar racist statements "many times before," it was reasonable for Jordan to believe that Farjah was creating a hostile environment for African American coworkers. Second, the district court relied on an unduly narrow definition of the statutory term "oppose" in § 704(a). One "opposes" racial discrimination not only by protesting it after it occurs, but also by trying to prevent it from occurring. This construction of § 704(a) accords with the Supreme Court's emphasis on one of the primary purposes behind Title VII: preventing racial discrimination and racially hostile environments from occurring. Employers have a duty to prevent hostile environments from occurring, and they cannot do that unless employees alert them to racist conduct of the kind alleged in this case. Such conduct, if repeated often enough, will create an unlawful hostile environment. Employees informing management about such offensive conduct are accordingly furthering the purposes of Title VII – by helping their employers comply with the act – and their complaints should therefore be deemed protected activity under § 704(a). ARGUMENT I. IT WAS NOT UNREASONABLE FOR JORDAN TO BELIEVE THAT FARJAH'S HIGHLY OFFENSIVE RACIST STATEMENT, WHEN AUGMENTED BY COWORKERS' REPORTS THAT FARJAH HAD MADE SIMILARLY OFFENSIVE STATEMENTS MANY TIMES BEFORE, WAS CREATING A HOSTILE ENVIRONMENT FOR AFRICAN AMERICAN EMPLOYEES. In ruling that Jordan could not have reasonably believed that Farjah's statements constituted a violation of Title VII, the district court failed to appreciate how severely offensive the statement Jordan heard was. This Court has repeatedly recognized that calling African Americans "monkeys" or "apes" is as "odious, . . . degrading and humiliating" as calling them "niggers." This Court has stated: "[The supervisor's] constant use of the word ‘monkey' to describe African Americans was similarly odious [to using the word ‘nigger']. 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." White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004) (Luttig, J.) (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001)). Moreover, there is an enormous difference between saying, on the one hand, that a black person looks like an ape or a monkey, which is the way the Spriggs and White panels saw the problem ("suggest[ing] that a human being's physical appearance is essentially a caricature of a jungle beast"), and calling that person an ape or a monkey – saying or implying that he is an ape or a monkey. Historically, racists in this nation have regarded African Americans as uncivilized, and intellectually and culturally inferior, and they have referred to, considered and treated them as sub-humans or animals. Specifically, racists have often referred to blacks as "beasts," "gorillas," "apes," or "monkeys." See, e.g., Jeffries v. Metro-Mark, Inc., 45 F.3d 258, 260 (8th Cir. 1995) (action challenging racial harassment, including a supervisor's calling black plaintiff a monkey); Bell v. City of Milwaukee, 746 F.2d 1205, 1276-77 (7th Cir. 1984) (in case alleging racist killing of black male by police officer, upholding admission of evidence that police sergeant involved in the case stated that he believed that blacks were apes); Morgan v. McDonough, 540 F.2d 527, 531 (1st Cir. 1976) (affirming district court's school-desegregation orders in school where white students intimidated black students by, among other things, chanting, "2, 4, 6, 8[,] assassinate the nigger apes"); Harris v. State, 46 So. 2d 91, 93 (Miss. 1950) (overturning manslaughter conviction because, among other things, district attorney referred to defendant as a "big, black gorilla"); see also Jennifer M. Russell, On Being a Gorilla in Your Midst, or, the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259, 260 (1993) (black law professor who found a picture of a gorilla placed in her school mailbox "harbored no doubts about the loud, unambiguous message conveyed: ‘Claim no membership to the human race. You are not even a sub-species. You are of a different species altogether. A brute. Animal, not human.' It was a time-worn message communicated to persons who are not white."); Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar. 6, 1996, at C1 (white sportscaster's reference to a black Georgetown basketball player as "a tough monkey" is "particularly egregious because of a centuries-old effort to dehumanize African Americans by linking them genetically with primates"). Since the statement Jordan heard was extraordinarily offensive, and since Jordan heard from two of his coworkers that Farjah had made similarly offensive racist statements many times before, the district court erred in ruling that it was unreasonable for Jordan to believe that these oft-repeated, highly offensive statements created different conditions of employment for blacks than for whites and were therefore unlawful. See, e.g., Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195-96 (7th Cir. 1994) (black employee attended a meeting at which her white supervisor said, "If a nigger can do it, anybody can do it"; plaintiff complained to management and was soon fired; Seventh Circuit affirmed the district court's ruling that Alexander's belief that the statement was unlawful was reasonable notwithstanding defendant's argument that, since a single racist slur does not constitute a hostile environment, Alexander's complaints were not protected); Reed v. A. W. Lawrence & Co., 95 F.3d 1170, 1174-80 (2d Cir. 1996) (plaintiff believed her two male coworkers were treating her as a subordinate, and one of them said she was "acting like a bitch in heat," and the other talked about whether his "pecker [wa]s getting in the way"; Reed complained and was soon fired; court held that the record supported the jury's finding that Reed's belief that she was being subjected to an unlawful employment practice was reasonable). II. AN EMPLOYEE IS PROTECTED BY § 704(a) WHEN HE COMPLAINS TO MANAGEMENT ABOUT SIGNIFICANTLY OFFENSIVE CONDUCT THAT, IF REPEATED OFTEN ENOUGH, WOULD CONSTITUTE A HOSTILE WORK ENVIRONMENT IN VIOLATION OF § 703(a). Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice" by the act. 42 U.S.C. § 2000e-3(a). Terms in anti-retaliation provisions such as § 704(a) should be construed broadly to further the purpose of the provisions. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997) (holding that the word "employee" in § 704(a) should be construed to include former employees, in part because that would be more "consisten[t] with a primary purpose of the antiretaliation provisions"); EEOC v. Ohio Edison Co., 7 F.3d 541, 545-46 (6th Cir. 1993) (holding that an employee is protected from retaliation even when the person who opposed the unlawful conduct was the employee's representative, and not the employee himself); cf. NLRB v. Scrivener, 405 U.S. 117, 122-25 (1972) (the anti-retaliation provision of the NLRA should be construed "more broadly . . . [because of Congress's intent] to afford broad rather than narrow protection to the employee" and "in order to fully effectuate the section's remedial purpose"). The district court assumed that Jordan could not have "opposed" an unlawful employment practice unless the unlawful employment practice had already occurred. This assumption is based on an unduly narrow definition of the term "oppose." A person who "opposes" capital punishment, for instance, does so not only by protesting against executions after they have occurred, but also by engaging in activities designed to prevent executions from happening, including, e.g., by voting against the death penalty when on a jury. See, e.g., Truesdale v. Moore, 142 F.3d 749, 757-58 (4th Cir. 1998) (approving exclusion from jury of jurors who "opposed the death penalty" because their "opposition to it would prevent [them from] voting for a death sentence"). Similarly, a person who acts to prevent abortions from occurring is commonly said to be "opposing" abortion. Cf. Van Dusen v. Barrack, 376 U.S. 612, 623 (1964) (party "opposed to transfer" will act "to prevent a transfer"); Schwabacher v. United States, 334 U.S. 182, 207 (1948) (stockholders "oppos[e]" a merger by acting to prevent it). Courts interpreting § 704(a) have recognized that opposition activities designed to prevent violations from occurring are as protected as activities designed to protest violations that are occurring or have already occurred. See, e.g., Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1194-95 (8th Cir. 2001) (ADA retaliation claim) (plaintiff supervisor believed ADA and company manual required that she accommodate Terry, an epileptic employee, with flexible work schedule; manager told her to stop accommodating Terry, but plaintiff protested those instructions and kept accommodating him; employer fired Terry and plaintiff; court affirmed judgment for plaintiff, holding that "[a] manager may be shown to have engaged in protected conduct if she refused to implement a discriminatory policy or took some action against it"); EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (when a white manager was told to fire a black subordinate, he objected to the instruction as racially motivated, and was soon fired; court held his opposition to the termination, which had not yet happened, was protected under § 704(a)); Goos v. Nat'l Ass'n of Realtors, 715 F. Supp. 2, 3- 4 (D.D.C. 1989) (same); Dailey v. Park Place Airport Parking, L.L.C., 2000 WL 641203, *4 (E.D. Mo. May 16, 2000) ("Plaintiff engaged in protected activity when he opposed [the boss's] directions not to hire any more black employees. Opposing an unlawful employment practice is protected conduct."). Defining "opposition" to include activities designed to prevent a violation from occurring would not only accord with the ordinary definition of the term; it would also help fulfill one of the central purposes of Title VII. The Supreme Court has repeatedly held that one of the primary objectives of Title VII is to eliminate arbitrary discrimination in the workplace, including the discriminatory alteration of terms and conditions of employment caused by a hostile environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998) (a primary objective of Title VII is to "avoid harm") (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)). A covered employer accordingly has an "affirmative obligation to prevent violations" such as hostile environments from occurring. Id. at 806. Faragher, of course, involved a hostile environment created by harassment by supervisors, but employers also have an obligation to take measures to prevent hostile environments caused by coworker harassment. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998) (stating, in case discussing coworker harassment, "An employer who has notice of a hostile work environment has a duty to take reasonable steps to eliminate it."); 29 C.F.R. § 1604.11(f) (2005) ("An employer should take all steps necessary to prevent . . . harassment from occurring . . . ."); EEOC, Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 Fair Empl. Prac. Manual 405:7651, 7662 n.58 (adopted June 18, 1999) ("[T]he employer should have a mechanism for investigating such allegations [of harassment by coworkers] and undertaking corrective action, where appropriate."). Courts use a negligence standard for assessing employer liability for hostile environments caused by coworker harassment. See, e.g., Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) ("The employer is liable [for a hostile environment created by coworker harassment] where it had ‘actual or constructive knowledge of the existence of a . . . . hostile working environment and took no prompt and adequate remedial action.'") (citation omitted); Haugerud v. Amery Sch. Dist., 259 F.3d 678, 700 (7th Cir. 2001) ("Employers are only liable for coworker harassment if the plaintiff demonstrates that the employer was negligent in some fashion."). An employer would not be liable for negligently allowing a hostile environment to develop or continue unless it owed its employees a duty of reasonable care to prevent or halt such a violation. See, e.g., De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293, 1306 (2d Cir. 2002) (claim of negligence presupposes a duty of reasonable care). Pursuant to their obligation to prevent violations of Title VII, many employers have instituted policies prohibiting harassment and have established procedures that employees may use to complain about harassment, so that the employers have an opportunity to investigate the complaint and stop the harassment. IBM and ARC had such policies and procedures in place when Jordan complained. Their policies in fact required employees to report to management any conduct that they perceived as discriminatory. Thus when Jordan complained to IBM and ARC managers about Farjah's statement, he was complying with a duty imposed on him by his employers, and he was serving the purposes of Title VII by helping his employers prevent violations from occurring. The Supreme Court has recognized that "it would . . . serve Title VII's deterrent purpose . . . [to] encourage employees to report harassing conduct before it becomes severe or pervasive." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (emphasis added). The district court, however, ruled that Jordan's complaint was unprotected precisely because he reported Farjah's conduct before it became severe or pervasive enough to constitute a hostile environment. This ruling puts employees like Jordan in a catch-22 situation. On the one hand, if they complain too early – i.e., before the harassment is so bad that a court would later rule that a reasonable person could have deemed it unlawful – their employers will be free to retaliate against them at will. On the other hand, if they wait until the harassment is so bad that it is clearly unlawful, they will be precluded from securing relief for the hostile environment because their employers will be found to have not been on notice of the harassment until the employees finally complained about it. This rule frustrates Title VII's purpose of eliminating discrimination in the workplace. Instead, an employee should be deemed protected from retaliation by § 704(a) when he reports conduct by a coworker or supervisor which, if repeated often enough, would create a hostile work environment. Several courts have held such complaints protected, often by applying a generous standard in determining whether the plaintiff's belief was reasonable. See, e.g., Alexander, 40 F.3d at 195-96 (summarized supra at p. 11); Reed, 95 F.3d at 1174-80 (summarized supra at p. 11); Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994) (black corrections officer believed prison's practice of allowing white inmates, but not black inmates, to shower after work shifts violated Title VII; he complained and was fired; court held that even if these inmates would not be considered employees for Title VII purposes, plaintiff's belief might still have been reasonable, and the district court accordingly erred in dismissing his claim); id. at 984 ("An erroneous belief that an employer engaged in an unlawful employment practice is reasonable, and thus actionable under § 704(a), if premised on a mistake made in good faith. A good-faith mistake may be one of fact or of law.") (emphasis in original); Carter v. Rosenberg & Estis, P.C., 77 Fair Empl. Prac. Cas. (BNA) 925, 930-34, 1998 U.S. Dist. LEXIS 4010, at *15-35 (S.D.N.Y. Mar. 31, 1998) (male coworker asked Carter for a kiss, and when she refused, he allegedly refused to take instructions from her and got her in trouble with her supervisor; Carter complained and was eventually fired; after long and detailed analysis, court rejects defendant's argument that Carter's belief that she was opposing unlawful activity was unreasonable); id. at 933-34, *33 ("[P]laintiffs alleging retaliation are not required to possess a good faith, reasonable belief as to every legal element necessary to succeed on such a claim, and are instead held only to a ‘lay person's' understanding of the violation . . . . It is the Court's firm conviction that . . . the law should not leave unprotected those employees who experience retaliation for reports of what they believe reasonably and in good faith to be a violation of the law . . . ."). In the district court the defendants relied on Little v. United Technologies, 103 F.3d 956 (11th Cir. 1997). While Little is factually distinguishable from the case at bar,<2> the panel deciding the case relied on principles in significant tension with the rule the Commission is advocating in this case, and the Commission believes those principles are infirm. The Little panel ruled that Little was not opposing an unlawful employment practice because: (a) coworker harassment is not attributable to the employer unless the employer "knew or should have known of the harassment in question and failed to take prompt remedial action"; and (b) the single racist comment by Wilmot could not be attributed to the defendants, and Little's protest was therefore not protected. Id. at 959-60. The Little court did not discuss the employer's duty to prevent hostile environments from developing, and the employees' essential role in that process; and the rationale on which the court relied leads to the same catch-22 that the district court decision in this case produces: the employee is not protected until the employer is liable for a hostile environment, but if the employee waits till then to complain to management, the employer will not be liable because it was not on notice of the harassment. Defendants may argue, as they did in the district court, that the Commission's position is precluded by Clark County School District v. Breeden, 532 U.S. 268 (2001) (per curiam). In that case a female employee met with a male coworker and her male supervisor to review the psychological evaluations of four job applicants. The report on one applicant disclosed that he had once commented to a coworker, "I hear making love to you is like making love to the Grand Canyon." The supervisor read this comment out loud at the meeting, looked at Breeden, and said, "I don't know what that means." Her male coworker replied, "Well, I'll tell you later," and both men chuckled. Id. at 269. Breeden complained about this incident to management, and her job duties were later reorganized to her detriment. The Ninth Circuit held that "it is possible that a reasonable person in Breeden's position could have mistakenly believed that [the supervisor's] behavior constituted unlawful sexual harassment." Breeden v. Clark County Sch. Dist., No. 99-15522, 2000 U.S. App. LEXIS 17564, at *5 (9th Cir. July 19, 2000). The Supreme Court, in a per curiam decision, reversed. The Court noted that "isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment," and stressed that it was part of Breeden's job to review these psychological evaluations, and that in the district court Breeden had "conceded that it did not bother or upset her to read the statement in the file." Breeden, 532 U.S. at 271. The Court concluded that "[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standards." Id. Breeden is easily distinguished on its facts. The objectionable statement in Breeden was nowhere near as offensive as the one in this case, and it was not part of Jordan's job to review Farjah's statements. The statement in Breeden contained no "fighting-word" epithet of the type that instantly transforms the nature of an interaction. It did not characterize women as sub-human. Nor was there evidence in Breeden, as alleged in this case, that similarly offensive statements had been made many times before. In sum, the language and conduct that the plaintiff objected to in Breeden were mild enough that a reasonable person would not believe that such language and conduct, even repeated many times, would constitute a hostile environment. Thus complaining about such conduct would not be protected activity under the test we have proposed above. CONCLUSION For the reasons stated above, the Commission urges this Court to reverse the district court's order and remand this case for further proceedings under the appropriate legal standards. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, Room 7040 Washington, DC 20507 202-663-4737 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that this brief was prepared using Times New Roman font, 14 point, and contains 4,646 words from the Statement of Interest through the Conclusion, as determined by the Corel WordPerfect 9 word-counting program. Paul D. Ramshaw CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following party and counsel: Marc R. Jacobs Seyfarth Shaw LLP 55 E. Monroe St., Ste. 4200 Chicago, IL 60603 J. Hardin Marion Tydings & Rosenberg LLP 100 E. Pratt St., 26th floor Baltimore, MD 21202 Stephen Z. Chertkof Heller, Huron, Chertkof 1730 M St., NW, Ste. 412 Washington, DC 20036 Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7018 Washington, DC 20507 (202) 663-4737 July 14, 2005 *********************************************************************** <> <1> These facts are taken from Jordan’s complaint and amended complaint. In ruling on defendants’ motion to dismiss, the district court was required to accept the allegations in the complaints as true and construe them as favorably as possible toward Jordan. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). <2> Little had no evidence that Wilmot, his coworker, had made similarly objectionable statements at other times, and he did not complain to management about Wilmot’s comment until about eight months later. Little, 103 F.3d at 958.